Bidas v Commissioner of Police, NSW Police Force

[2013] NSWADT 220

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Bidas v Commissioner of Police, NSW Police Force [2013] NSWADT 220
Hearing dates:	28 May 2013; 6 September 2013; 23 September 2013;
Decision date:	09 October 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision to revoke the Applicant's firearms licence is affirmed.
Catchwords:	Firearms Act - firearms licence - revocation of licence - fit and proper person - contrary to the public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Bottomley v Commissioner of Police [2005] NSW ADT 211 Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Hill v Commissioner of Police [2002] NSWADT 218 at [22]. Huckel v Commissioner of Police [2008] NSW ADT 347 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68. Lynch v Commissioner of Police [2006] NSWADTAP 43 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Category:	Principal judgment
Parties:	Brendan Bidas (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	B Bidas (Applicant in person) Bartier Perry (Respondent)
File Number(s):	123309
Publication restriction:	Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicants or to the public

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a decision by a delegate of the Respondent to revoke the Applicant's firearms licence.

1. The Respondent contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so.

Background

1. The Applicant was issued with a Category ABD firearms licence under the Firearms Act 1996 (""the Act") in July 2009. The licence was due to expire in September 2014. However, it was revoked on 21 August 2012. The revocation was affirmed on internal review.

1. The revocation followed the Applicant's conviction for the offences of 'Publish etc false misleading material to obtain advantage' and 'False representation resulting in police investigation'. He was ordered to undertake 60 hours of community service and pay $81 in court costs.

1. The Applicant's criminal history is not in dispute. The delegate set out background information regarding that history in the Statement of Reasons provided in relation to the internal review as follows:

After considering this material I find as a fact the following:

• That you were found to have committed 20 driving offences between the years 1988 to 1994, and 2006 to 2012. The offences included five speeding offences, five offences relating to driving under the influence of alcohol or drugs and three relating to driving while you were disqualified from driving or while your drivers licence was either suspended or cancelled;
• That your drivers licence was suspended on four occasions in between June 2010 and February 2011. However, one suspension was replaced with Good Behaviour Conditions and another suspension was withdrawn because you were already disqualified from driving. Further, on 24 December 2010 you were sent a Habitual Offence Warning Letter;
• That on 8 October 1990 at Newcastle Local Court you were convicted of the offence 'Enter enclosed lands' and you were fined $100;
• That on 28 July 1992 at Wallsend Local Court you were convicted of the offence 'Mid PCA' and you were fined $500 and you were disqualified from driving for three months;
• That on 2 December 1993 at the Belmont Local Court you were convicted of the offences 'Possession prohibited drugs', 'Drive after licence cancelled ' and 'Drive with high range concentration of alcohol You were fined $500 for each of the first two offences and $1000 with respect to the third offence. In addition to the fines the Court saw fit to impose two consecutive periods of disqualification totalling 18 months;
• That on 23 March 2009 at Toronto Local Court you were convicted of the offence 'Drive with low range PCA'. You were fined $550 and you were disqualified from driving for three months;
• That on 4 June 2009 police inspected your firearm safe storage facilities and found them compliant with legislative requirements;
• That you were issued a firearms licence on 17 July 2009 for the genuine reasons of Recreational Hunting/Vermin Control and Vertebrate Pest Animal Control Contract Shooter;
• That on 15 December 2010 at Toronto Local Court you were convict of the offences Drive while under the influence of alcohol or other drugs' and 'Drive when licence suspended under s 66 Fines Act - 1st off'. You were fined $800 and disqualified from driving for three years in respect of the first charge and $200 and disqualified for three months for the latter charge. The court orders and conviction were affirmed by the Newcastle District Court on 4 March 2011.
• That on 10 August 2011 at Toronto Local Court you were convicted of the offences 'Drive while disqualified from holding a licence' and 'Drive with middle range PCA'. You entered into Community Service Orders (CSO) for 100 hours and 120 hours cumulative. Additionally, you were disqualified from driving for three years from 15 December 2013 (the same date your earlier disqualification ends) until 15 December 2016;
• That on 23 May 2012 at the Toronto Local Court you were convicted of the offences 'Publish etc false misleading material to obtain advantage -T1' and 'False representation resulting in police investigation'. You entered into Community Service Orders for 60 hours for each offence, to be served cumulatively.

1. As is apparent, many of the Applicant's offences are old and are only of historical value for the purposes of these proceedings. However, the Respondent contends that the Applicant's driving offences demonstrates a disregard for public safety.

The May 2012 convictions

1. As noted, in May 2012 the Applicant was convicted of the offences 'Publish etc false misleading material to obtain advantage -T1' and 'False representation resulting in police investigation'. The offences related to the reported theft of a Harley Davidson motorcycle ("the motorcycle incident"). In March 2011, the Applicant contacted the Police Assistance Line and made a report of theft from his motorcycle. He subsequently made an insurance claim with NRMA Insurance in relation to the alleged theft. The claim was for $36,000.

1. In June 2011 the Applicant admitted to an NRMA investigator that he had made a false report of theft to police and a false claim to the NRMA.

1. Mr Darren Linsley was engaged by the NRMA to investigate the Applicant's claim. Between March and May 2011, Mr Linsley undertook an investigation into the claim made by the Applicant and interviewed the Applicant four times.

1. The Applicant gave an elaborate story to support the alleged theft of his property. He denied that he was involved in the alleged theft. During the fourth interview the Applicant admitted to Mr Linsley that he had provided false information to the police and the NRMA in relation to the alleged theft of his property. He admitted that he was responsible for making his premises appear as if it had been broken into and that the motorbike had been stolen from his property. The incident related to a falling out between the Applicant and a local outlaw motorcycle gang ("OMCG").

1. In November 2011, Police interviewed the Applicant in relation to the matter. In the interview the Applicant admitted that he had made the false report of theft and the fraudulent insurance claim. He had not previously brought this to the attention of Police. Following the interview, the Applicant was charged with the offences.

1. The Applicant pleaded guilty to the charges. The Facts Sheet tendered to the Court provided:

The accused is currently employed as a motor mechanic in the mining industry and earns around $120 thousand per year. The accused appeared to be remorseful for his actions on this occasion and claim he was being harassed by the local motor cycle gang.

At 11.50am on Tuesday the 15th of March 2011, the accused Brendan John BIDAS ... contacted the police assistance line to initiate a police investigation re a break enter and steal offence. The accused stated in the recorded phone call that between the hours of 6pm on Monday the 14th of March and 11.30am on Tuesday the 15th of March 2011 an unknown person - persons had gained entry to his premises and stole his property which included 2 gold coloured bracelets, gold coloured necklace, a laptop computer, a gold coloured wedding ring, 2 x televisions and a Harley Davidson motor cycle bearing NSW registration plates QZR71 which in total came to approximately $44800.

The company that the accused had insured motor cycle with was NRMA. The motor cycle policy was the reason an investigation took place as the policy for this was only taken out on the 8th of March 2011 only a week prior to the motor cycle being reported stolen.

NRMA claim number ANIBK11/00173 was initiated due to the reported break enter and steal incident reported by the accused to police.

A police investigation also took place where forensic services officers from Newcastle Crime Scene attended [the Applicant's address] to examine and document evidence at the scene of the break and enter.

NRMA also employed an independent investigator who conducted a lengthy investigation where he interviewed the accused BIDAS on four separate occasions. On the last occasion which was on the 17th of May 2011 the accused made full admissions to organising and committing the break enter and steal offence at his premises. These admissions and all the other evidence obtained by the independent investigator was forwarded to police by the directors of the NRMA for criminal proceedings to be looked at.

During the months between August and November 2011 police attended the accused home premises on a number of times to speak to him about the alleged false reported break, enter and steal offence with nil luck. At 9.50am on Thursday the 17th of November 2011 police again attended the accused home premises and spoke to him. The accused was arrested and cautioned about the falsely claimed break, enter and steal offence and a hand held electronically recorded interview took place between the accused and police at his premises.

The accused during the interview made full admissions to organising and committing the offence himself prior to contacting the police assistance line and making a false report initiating a police investigation. When questioned about why he did this the accused stated "I had a falling out with a local motor cycle gang (Life and Death)."

The accused did state he was aware a police investigation would take place when he contacted the police assistance line to report the offence.

The accused also stated that he did not receive any money from NRMA for the incident and had parted ways with the motor cycle gang.

The accused was informed by police that he would be charged with the matters now before the Court by way of Future Court Attendance Notice.

Applicable legislation

1. The underlying principles and objects of the Act are stated in section 3:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.17.

1. Consistent with a licence being a privilege, the Act places various restrictions on the issue of a licence. Relevantly, section 11 provides:

11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant's way of living or domestic circumstances,

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

1. Section 24 provides for the revocation of a licence in certain circumstances:

24 Revocation of licence

...

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee:

(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.

...

1. Clause 19 of the Firearms Regulation 2006 ("the Regulation") provides:

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

1. Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.

1. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357). As the use of the word "may" in s 24(2)(a) of the Firearms Act makes clear, the Respondent has a discretion to revoke a licence and the provision does not provide for compulsory revocation, as is the case in some other sections of the Act. However, the Act provides no explicit guidance on how that discretion should be exercised.

1. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the Respondent the ability to revoke a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

1. Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. Section 75 of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:

75 Proceedings on hearing to be conducted in public

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

...

1. At the request of the Respondent, I ordered that part of the hearing was to be conducted in private and in the absence of the Applicant so that evidence could be presented on a confidential basis. I also ordered that the evidence and the identity of the source of the evidence were to remain confidential.

The Respondent's case

1. The Respondent contends that the revocation was justified because:

• the Applicant is not a fit and proper person to hold a firearms licence: see section 24(2)(c) and section 11(3)(a) of the Act; and
• it is not in the public interest for the Applicant to continue to hold a firearm licence: see section 24(2)(d) of the Act along with clause 19 of the Regulation.

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act and the evidence of Senior Constable Geoffrey Searant, of Charlestown Police Station. Senior Constable Searant provided a statement, was available at the hearing and was subjected to cross-examination.

1. The Respondent also relies on notes of counselling sessions undertaken by the Applicant with Ms Cath Adams.

1. As noted above, the Respondent also relies on evidence presented on a confidential basis. I will not discuss that evidence in the reasons that are to be publicly available.

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1. The Respondent requested that Ms Adams be available for cross-examination at the hearing on 23 September 2013 however she was unavailable. Mr Mattson submitted that Ms Adams' reports should only be admitted on the basis that the weight to be given to them should take account of the fact that Ms Adams could not be questioned. He pointed to a number of inconsistencies between the reports and her notes of counselling sessions undertaken with the Applicant.

1. Mr Mattson submitted that Ms Adams' notes suggest that the Applicant failed to reveal the nature of the criminal charges brought against him and as such, any opinion expressed by Ms Adams in relation to the Applicant's suitability to hold a firearms licence may not be based on a full understanding of the circumstances that led to its revocation.

1. He also submitted that there is no basis to establish Ms Adams is an expert and in a position to express any opinion and therefore she could not be regarded as an expert witness. He submitted that she is not a qualified Psychologist or Psychiatrist and her reports were not in the appropriate expert witness format.

1. Senior Constable Searant gave evidence in relation to his dealings with the Applicant regarding the motorcycle incident. In his statement he said:

I attended the property to interview Mr Bidas in relation to his report to police and his claim for insurance from NRMA.

When at the property, I interviewed Mr Bidas in relation to the allegations and recorded that interview on a hand held sound recorder. Annexed and marked "C" is a transcript of the electronically recorded interview I undertook with Mr Bidas whilst at his property.

When I spoke to Mr Bidas, he readily admitted that he had made the false report of theft and the fraudulent insurance claim ...

Following the recorded interview, a short conversation with Mr Bidas took place. Mr Bidas said to me words to the effect:

I used to be a nominee of Life & Death. I had a run in with one member of the gang and I got into a bit of trouble with the club. I smashed up my place to look like a theft but I gave the bike and other property to the gang to repay a debt. I needed to repay the debt as they'd threatened me and I wanted to keep my family safe"

In response to Mr Bidas I said: I can attend the clubhouse for you and see if the bike is still there. Mr Bidas rejected this offer saying "don't go there please".

1. The Applicant challenged this evidence and put to Senior Constable Searant that he did not say that he had an association with Life & Death motorcycle gang. Senior Constable Searant denied that he could have been mistaken about the conversation but conceded that it had not been recorded.

1. In his statement Senior Constable Searant set out his concerns in regard to the Applicant holding a firearms licence. He stated:

38. Mr Bidas' actions have, in my professional opinion, demonstrated serious dishonesty. Mr Bidas, in my view, only admitted the false claim once he'd been caught out. Indeed, after Mr Bidas admitted the false claim to the NRMA, Mr Bidas made no attempt to contact police himself, instead, only acknowledging it when I attended his premises about 6 months later.

39. I would be concerned if Mr Bides were given the privilege of a firearms licence for the following reasons:

The matter for which he was charged, and found guilty, reveals serious dishonesty on his part;

Mr Bidas has admitted links to outlaw motorcycle gangs and expressed an interested in being a nominee of such a gang;

Mr Bides has admitted to me he had a falling out with members of an outlaw motorcycle gang;

In my experience, members of outlaw motorcycle gangs maintain grudges;

Mr Bidas, in the incident in March 2011, simply gave his motorbike and other property to outlaw motorcycle gang;

Mr Bidas did not report the alleged threats made against him to police;

I can have no confidence that if pursued by an outlaw motorcycle gang in the future, he would not behave in a similar manner and hand over other property to them, including firearms;

In my professional view, if Mr Bidas had access to firearms and this is known by outlaw motorcycle gangs then there is a real risk that they would be sought by the outlaw motorcycle gang by placing pressure on Mr Bides to give them to him;

Mr Bides has demonstrated, by his past actions, that he will give in to demands of outlaw motorcycle gangs; and

I also have no confidence in Mr Bidas' honesty in reporting any such matters to police.

1. Mr Mattson provided detailed written submissions in support of the Respondent's case. He also provided further oral submissions at the hearing.

1. Mr Mattson submitted that Senior Constable Searant's concerns are legitimate and rationale concerns held by an experienced police officer. He further submitted that the Applicant was unable to provide any reasonable response to the concern that if members of an OMCG became aware that the Applicant had access to firearms then there is a real risk that they would place pressure on the Applicant to give hand over the firearms to the OMCG.

1. Mr Mattson submitted that the Applicant is not a fit and proper person to have a firearms licence because of:

his dishonesty in relation to the motorcycle incident and his subsequent maintenance of that dishonesty until caught out by the NRMA;

his lack of acknowledgement about his conduct in seeking the return of his licence;

his interest in being a member of an OMCG; and

the concerns raised by Senior Constable Searant.

1. Mr Mattson submitted that it is not in the public interest for the Applicant to hold a firearm licence for the following reasons:

• his significant history of recent driving offences demonstrates a disregard for laws designed to protect the safety of the public;
• his link to an OMCG, and in particular the dispute with an OMCG;
• he did not report alleged threats made against him by OMCG to police;
• instead he gave access to his property to individuals of an OMCG to pay "a debt";
• his subsequent dishonesty and maintenance of this dishonesty to police and the NRMA; and
• there are legitimate concerns that if pressured by members of an OMCG again, the Applicant would similarly hand over his property to them, including firearms.

1. The Respondent submits that the correct and preferable decision for this Tribunal to make is to affirm the Respondent's decision to revoke the Applicant's firearms licence.

The Applicant's case

1. The Applicant relies on his own evidence. He gave evidence at the hearing and was cross-examined.

1. The Applicant is currently employed in the mining industry but is concerned that this employment may not continue. He is seeking to have the firearms licence so that he can work as a professional shooter and undertake licensed eradication of pests, feral and vertebrate animal control.

1. His evidence is that he has had counselling with Ms Adams on a regular basis and that he has turned his life around in a positive way. His said that his regular GP is Dr Janaksinh Babla. While he did not seek to rely on evidence from either Dr Babla or Ms Adams, I note that Ms Adams has referred in her notes to the Applicant's desire to put his past behind him by committing to counselling and learning from his past actions and mistakes. Ms Adams' notes also record that the Applicant had discussed his desire to undertake contract shooting.

1. The Applicant gave evidence in relation to the motorcycle incident. His evidence was that he was in trouble with members of an OMCG who made threats towards him and members of his family and that he feared for his life. He said that he had a falling out with members of the OMCG but did not owe them money. A member of the Gypsy Jokers and a member of the Gladiators motorcycle gangs warned him that his motorcycle was targeted and would be taken by Life & Death motorcycle gang members. His motorcycle was taken as a penalty for the trouble he had caused to the OMCG.

1. He said that he had been drinking and staged a robbery in order to get the police involved because he thought the police would get his motorcycle back. His motive was to secure the return of his motorcycle and not to obtain financial advantage from the NRMA. He said that he made the insurance claim to make the matter seem real. He denied that he was in debt to the Life & Death motorcycle gang or any other OMCG. He said that he made the false complaint to police in an attempt to have the individuals who had made threats against him apprehended by police and to seek the return of the motorcycle.

1. He conceded that he did not advise the Police of the threats that had been made to him by the OMCG. He said that he didn't do so because the OMCG would pursue him and that the Police would not be able to protect him. He said that if he is able to get a firearms licence there is no reason for concern about the storage of his firearms. He said that his safe is secure and no one would need to know that he had firearms. He denied that he has any dealings with OMCG members and denied that there is any risk of OMCG members obtaining his firearms. He also said that he would look at storing the firearms outside the metropolitan area.

1. He gave evidence that he made a full and frank admission to the NRMA investigator when it became apparent that the police would not be in a position to make any arrest with respect to the threats made against him and his family. He said that he made the admissions to the investigator prior to any financial advantage being paid to him. He conceded that he did not tell the Police that the claim was false. He said he thought the NRMA would notify the Police.

1. The Applicant entered a plea of guilty in relation to the charges brought against him. He expressed remorse for his actions and stated that he is a fit and proper person to hold a firearms licence.

1. The Applicant relies on a number of character references provided on his behalf. The authors of those references all appear to hold the Applicant in high regard. Several of the references indicate that the author is aware of the reasons for the revocation of the Applicant's firearms licence and nevertheless hold the view that he should be permitted to hold the licence.

1. The Applicant also relies on two reports provided by Cath Adams. His evidence was that he has been seeing Ms Adams since 2008, and not just for the purposes of this matter. The first report is dated 11 April 2013 ("the April report"). The second report is dated 10 July 2013 ("the July report"). The April report stated:

This is to certify that I have had seen Mr Bidas weekly for approximately 5 weeks and have had weekly 1 hour sessions with him.

In 2006 I was having regular consultations with Mr Bidas as this was an extremely emotional year for him. Mr Bidas and his wife were having marriage difficulties and were later to divorce and there was an incident where a person had fallen off Mr Bidas' verandah and to this day the issue has not been resolved. Mr Bidas tried to assist and in fact helped save the persons life but was subjected to having blood tests once a month for a year due to potentially being exposed to viruses. This was a most difficult time in Mr Bidas' life.

In the past few sessions I have discussed with Mr Bidas about the fact that he has had his gun licence and guns removed. Mr Bidas explained to me the reasoning behind this and we have worked continuously over the past 5 weeks to explore Mr Bides' patterns in behaviour and learn from any mistakes he has made. To my knowledge, there has never been any previous complaints made against Mr Bidas in reference to the guns or his use of them.

Mr Bidas is very stable and I believe he would never threaten or hurt another human being with use of his guns. It is my professional opinion that Mr Bidas be allowed to obtain his gun licence again and to keep his guns in an allocated safe.

I ask you to consider the fact that Mr Bidas will maintain attending therapy with me after this issue has been finalised in court.

1. The April report stated:

This is to certify that I have seen Mr Brenden Bidas twice a week over the past month. The sessions have been of 1 hour duration.

This letter supports Mr Bides being able to retain his gun licence and guns again. In the past month, Mr Bidas has been extremely committed to intensive counselling sessions, as he wants to prove he is a responsible and stable individual. During these sessions we have discussed past behaviours, how they have led to negative outcomes and ways in which to break previous cycles. In saying this, there is no past cycle in regard to Mr Bidas's guns as he has always been responsible.

Mr Bidas is focussed on maintaining stable and positive relationships within his life and, in order to complete this, Mr Bidas is required to maintain his own stability and consistently work on keeping his life healthy on all levels.

Mr Bides knows he can apply the techniques we have discussed as he has been doing so for some time and this is not in relation to obtaining his guns and gun licence again. This accounts to the fact that Mr Bidas has continually focussed on positive change for himself overall.

Mr Bides currently has a more secure gun safe than in previous times to ensure safety.

Mr Bidas practices mindfulness and stress management on a regular basis as this enables calmness and being able to deal with issues more logically.

1. As noted above, Ms Adams was required for cross-examination but was unavailable. The Applicant had apparently indicated to Ms Adams that she was required but he did not seek to have a summons issued for her appearance.

Discussion

1. Mr Mattson has referred me to a number of prior decisions of the Tribunal discussing the relevant legislative provisions. In deciding this matter I have had regard to those decisions and I note that I am in general agreement with Mr Mattson in regard to the applicable law.

1. I have also had regard to the fact that the underlying principles of the Act emphasise the need to ensure public safety. The consistently applied test is that set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm.

1. There have been many decisions by this Tribunal that confirm that a firearms licence is a privilege and not a right: see for example, Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2, Bottomley v Commissioner of Police [2005] NSW ADT 211 and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68.

1. Any discretion must be exercised to promote the objects of the firearms legislation and the discretion exercised in clear preference to the public interest than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 at [43].

1. In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23] the Tribunal's Deputy President stated that the discretion should be exercised in a way which promotes the principles and objects of the Act. This approach has been adopted in numerous decisions of this Tribunal. As I stated in Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at paragraph [16]:

16 The Act is to be interpreted narrowly ... in exercising discretion. The principles and objectives of the Act are set out in section 3. The underlying principles of the Act are to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting safe and responsible storage and use of firearms.

Fit and proper person

1. The meaning of the phrase 'fit and proper person' was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ said:

The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.'

1. The meaning of the phrase was also discussed in Australian Broadcasting Commission v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said at [36] of their judgment:

The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.

1. As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed.

Public interest

1. The Appeal Panel has described the "public interest" as "an inherently broad concept" giving the Respondent the ability to have regard to "a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order to "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from licence loss: Huckel v Commissioner of Police [2008] NSW ADT 347.

1. The Applicant's personal interest in retaining his licence should not outweigh the public interest: Hill v Commissioner of Police [2002] NSWADT 218 at [22].

1. In determining this matter I must have regard to the principles and objects of the Act. Before I can exercise the discretion to permit the Applicant to hold a licence under the Act I must be satisfied that there would be virtually no risk to the public or that the public would be comfortable with the Applicant holding a firearms licence.

1. In my view, the offences for which the Applicant has been convicted are serious and cannot be disregarded. It is important that licence holders are candid in their dealings with Police. The offences for which he was convicted demonstrate a lack of candour.

1. As the focus of the Tribunal is the need to ensure public safety, the fact that the Applicant's conduct in relation to the motorcycle incident resulted in an order to undertake community service and pay court costs does not mean that he should automatically escape an administrative sanction against his licence: Lynch v Commissioner of Police [2006] NSWADTAP 43 at [47].

1. The Applicant's evidence was that the motorcycle incident arose from a dispute that he had with an OMCG and it seems that he had been drinking when he formulated his plan. Alcohol or drugs have figured prominently in many incidents recorded in the Applicant's criminal history. Ms Adams' notes make passing reference to alcohol or drugs but her reports make no reference to those issues and she was not available to answer questions in regard to the Applicant's current situation regarding alcohol and drugs. Ms Adams' reports do not give any indication as to whether alcohol and drugs is a factor to be taken into account in an assessment of risk to the public should the Applicant have access to firearms.

1. The Applicant has denied being a nominee of an OMCG. However, Ms Adams' notes make reference to an altercation that he had with members of a motorcycle gang. The notes state:

Client states got involved with a motorbike gang & had 2 fights

1 - with younger male who thought client was undercover cop. Guy told client not to wear vest with patches as doesn't belong to club - verbal altercation then guy brought our bat & hit client.

1. These notes suggest that the Applicant was wearing a vest with the OMCG patches. If that were the case, it would tend to support the evidence given by Senior Constable Searant that the Applicant had told him that he had an association with the Life & Death motorcycle gang. Ms Adams was not available to answer questions in regard to the discussion that she had with the Applicant in regard to his association with an OMCG.

1. I also note the Respondent's concerns regarding Ms Adams' qualifications and inconsistencies between the content of her reports and her notes insofar as they relate to the number of counselling sessions that the Applicant had attended.

1. Given these issues, little weight can be given to Ms Adams' reports.

1. I note the character references provided on behalf of the Applicant speak highly of him. However, I give little weight to those references that gave no indication of whether or not the authors were aware of the matter that is before the Tribunal.

1. In light of the Applicant's background, it is understandable that the Commissioner has concerns about his suitability to hold a firearms licence. The confidential evidence provided to the Tribunal supports those concerns.

1. At this time, in the absence of independent third party psychological evidence, I cannot be satisfied that there would be virtually no risk to the public or that the public would be comfortable with the Applicant holding a firearms licence. I cannot be satisfied that the Applicant is a fit and proper person to hold a licence. It follows in my view that the correct and preferable decision is to revoke the Applicant's firearms licence. Accordingly I affirm the Respondent's decision.

1. I am unable to provide any specific guidance as to what I would consider to be sufficient to dispel my concerns. However, I suggest that the Applicant undertake further sessions with a suitably qualified psychologist or psychiatrist who can then provide a detailed report that addresses all the issues that have been raised by the Respondent. If he takes those steps and should he choose to reapply for a firearms licence, the Respondent may well reach a different conclusion.

Orders

The decision to revoke the Applicant's firearms licence is affirmed.

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Decision last updated: 09 October 2013