Bressan v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bressan v Commissioner of Police, NSW Police Force [2025] NSWCATAD 89

Hearing dates:

17 May 2024

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

LICENSING - firearms - refusal– whether or not it is in the public interest for applicant to hold a licence–fitness and propriety– candour –traffic offences – late renewals of licence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Todorovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Robert Bressan (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
TJ Boyle (Respondent)

Solicitors:
Sydney Criminal Lawyers (Applicant)
Hicksons Lawyers (Respondent)

File Number(s):

2024/00035600

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Robert Bressan (the Applicant) has held firearms licences in a number of categories at various times from 1998, and most recently held a category ABG firearms licence under the Firearms Act 1996 (NSW) (the Act) which expired on 18 October 2023.

2. On 8 November 2023, the Applicant lodged an application for a category AB firearms licence (Application).

3. On 16 November 2023, a decision was made by the Respondent to refuse the Application.

4. On 10 December 2023, the Applicant applied for an internal review of the Respondent’s decision and on 2 January 2024, the Respondent affirmed the decision to refuse the Application (the Decision).

5. The Applicant applied to this Tribunal on 29 January 2024 for review of the Decision (application for review) by the Respondent to refuse the Application.

6. The matter was heard by the Tribunal on 17 May 2024 and no issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter.

Jurisdiction

7. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). I am satisfied that the Tribunal has jurisdiction in relation to this application for review.

Applicable legislation

8. The general principles and objects of the Act are set out in s 3 as follows:

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 supply of firearms,

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

(f)  …

9. Section 11 of the Act relevantly 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

…

(c)  the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, 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, or

…

(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.

(8)  The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

10. Section 12 of the Act provides that:

(1)  The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

…

(4)  Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

(a)  states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b)  is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

The evidence

11. The matter was heard before me on 17 May 2024. The Applicant relied on a letter from Dr Simon Gerber of the Park Family Practice dated 24 January 2024 (exhibit A1), a letter from Dr Catriona Ireland, Geriatrician and Cognitive Disorders Physician, dated 11 March 2024 (exhibit A2) together with five character references (exhibit A3).

12. Dr Gerber gave oral evidence by way of audio-visual link (AVL) and was cross-examined by Mr Boyle, counsel for the Respondent. The Applicant also gave oral evidence and was cross-examined.

13. The Respondent relied on the s 58 documents (exhibit R1) and an affidavit of Sergeant Dallas Kelly dated 24 April 2024 (exhibit R2). Sergeant Kelly gave oral evidence by way of AVL and was cross-examined by the Applicant’s solicitor, Mr Murdoch.

Submissions

14. The Applicant relied on written submissions handed up by Mr Murdoch and the Respondent relied on the Respondent’s written outline of submissions (Respondent’s written submissions) dated 29 April 2024. Both parties made oral submissions at the hearing.

Role of the Tribunal

15. Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment.

16. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

17. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] (Cusumano). Accordingly, the objects and purposes of the Act are relevant when exercising a discretion under the Act.

Position of the parties

Respondent’s position

18. It was the Respondent’s position that the Tribunal should find that the correct and preferable decision is to affirm the Decision as it would be contrary to the public interest for the Applicant to hold a firearms licence. The Respondent relied on the following matters relating to the Applicant in support of that position:

1. Evidence of an unsound mind and medical conditions;

2. Lack of genuine reason for a firearms licence;

3. Failures to adhere to the obligations and requirements attending a licence holder;

4. Failures to properly and safely store firearms;

5. Traffic record and failure to give particulars; and

6. Generally uncooperative and quarrelsome with Police.

19. The Respondent also submitted that the evidence indicates that the Applicant is not a fit and proper person to hold a firearms licence because he poses too significant a risk to the public.

Applicant’s position

20. It was submitted on behalf of the Applicant that the evidence from Dr Gerber and Dr Ireland unequivocally asserts that there is no cognitive or mental impairment hindering the Applicant’s capacity to safely possess firearms in a manner detrimental to public safety. It was also submitted that the Applicant’s intentions to retain firearms align with lawful and responsible firearms ownership.

21. It was submitted that the Applicant, who was almost 84 years old at the date of the hearing, had lived a life devoid of any criminal offences or charges in Australia, demonstrating exceptional character. Mr Murdoch submitted that the Applicant’s possession of firearms for over 25 years without incident underscored the Applicant’s responsibility and adherence to the law and the evidence established an absence of public safety concerns.

22. Having regard to the above, the Tribunal will first consider whether the issue of the licence to the Applicant would be contrary to the public interest: s 11(7) of the Act.

Public Interest

23. The phrase “public interest”is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

24. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor(No 2) (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference to “public interest” is 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.

25. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

26. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].

27. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was  satisfied that despite the fact that the applicant had assaulted his partner, he was a fit and proper person to have a firearms licence. “The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” at [8].

28. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that, "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". 

Unsound mind and medical conditions

29. The Respondent submitted that the Applicant’s NSW Driver Licence (driver licence) was subject to two conditions as follows:

1. Neurological – Dementia/Cognitive Impairment; and

2. Musculoskeletal – Severe Arthritis.

30. In support of this contention, the Respondent relied on an undated document, which appeared to be a screenshot, headed “Licence Conditions” that was contained in the s 58 documents (Licence Conditions document). The Licence Conditions document refers to a condition effective 14 January 2005 that the Applicant must wear “specs” or contacts while driving. It was conceded by the Applicant that his driver licence was subject to such a condition, and I accept this to be the case.

31. The Licence Conditions document also referred to what appears to be cardiovascular procedures undergone by the Applicant with an effective date of 8 June 2021. It was not clear how these references amounted to a condition on the Applicant’s driver licence and were not relied upon by the Respondent in the application for review. Accordingly, I give these references no further consideration.

32. The Licence Conditions document makes reference to “Neurological Impairment” followed by the words “Dementia/Cognitive” with an effective date of 11 May 2022 and to “Musculoskeletal” followed by the words “Severe arthritis” with an effective date of 15 December 2022.

33. In the Applicant’s request for internal review on 10 December 2023, the Applicant wrote that his driving ability and record “remains very sound” and that he was physically and mentally fit and active.

34. In his letter dated 24 January 2024, Dr Gerber wrote as follows:

“[The Applicant] has very mild cognitive impairment but no dementia. He has been seen by Professor Bruce Brew (neurologist) and Dr Catriona Ireland (geriatrician) to actively manage his health in order to maintain optimal health. Neither of them believe he has dementia. He has arthritis which is not interfering with his physical activities. He remains active and social without any limitations.

He continues to travel and manage his affairs.”

35. In his evidence before the Tribunal, Dr Gerber said that the Applicant had been his patient for some three years and that he had seen him on 24 January 2024 in order to write the letter before the Tribunal. He referred to the Applicant having experienced some cognitive decline three years previously related to stress and anxiety from the closure of his business and gave evidence that the Applicant had improved significantly since that time. Dr Gerber referred to the Applicant having been reviewed by Professor Brew and Dr Ireland and the examinations that had been conducted.

36. The letter from Dr Ireland dated 11 March 2024 stated that she is a geriatrician and had assessed the Applicant in March 2022 and again in March 2024. She said that the Applicant had mild cognitive impairment but not dementia in 2022 and that he had improved significantly on further cognitive testing. She said that as of March 2024, the Applicant no longer had a diagnosis of mild cognitive impairment and could be then considered to have “normal cognitive function for his age”.

37. In his evidence, the Applicant said that he was really upset about the reference to these matters in the Decision and that the only condition on his licence related to wearing glasses.

Consideration

38. Counsel for the Respondent noted that the Licence Conditions document had been generated from the Police Computerised Operational Police System (COPS) database but was unable to further assist the Tribunal in relation to that document or how it dovetailed with the Applicant’s driver licence.

39. It is not apparent from the evidence before the Tribunal how the references to the neurological or musculoskeletal matters in the Licence Conditions document can be seen to be “conditions” imposed on the Applicant’s driver licence as they do not appear to require the Applicant to do, or refrain from doing, something. I am satisfied from the available evidence that the Applicant does suffer from arthritis and was found to have mild cognitive decline in March 2022 but that he no longer had mild cognitive decline in March 2024. I am not satisfied that these references amount to conditions on the Applicant’s driver licence and in my view, are merely notations of medical issues relating to the Applicant at particular points of time. Even if I am mistaken in relation to this, I am satisfied that the Applicant continued to hold a driver licence at the time of the hearing, and that these medical issues did not prevent him from doing so.

38. There was no report before the Tribunal from Professor Brew and Dr Ireland did not give oral evidence before the Tribunal. The Applicant is now aged 84 years old and is said by Dr Ireland to have “normal” cognitive function for his age. Whilst it is not clear what “normal” cognitive function is for an 84-year-old, Dr Ireland, a geriatrician expressed the view as of 11 March 2024 that there was no cognitive reason for the Applicant to not be able to drive or renew his firearms licence. Dr Gerber’s evidence was that whilst the Applicant has arthritis, it is not interfering with the Applicant’s physical activities. In light of the medical evidence before the Tribunal, I am not satisfied that the Applicant is currently of unsound mind for the purposes of the Act or that he currently has any medical condition that in itself would present a danger to public safety, or to the peace if he was to be issued with a firearms licence. Accordingly, I have no further regard to this issue in my consideration of this application for review.

Traffic history and failures to give particulars

41. The Respondent submitted that the Applicant has an extensive traffic record which casts doubt on his ability to abide by the firearms legislation as it indicates that he has a general disregard for public safety. It was also submitted that the Applicant has been abusive and quarrelsome with police officers in the past, as well as other road users.

Applicant’s traffic history

42. The Respondent relied on the Applicant’s Traffic Record Report (traffic record) (part exhibit R1). The traffic record indicates that the Applicant was issued with an unrestricted driver licence in July 1974 and that between 16 December 1980 and 4 September 2023, the Applicant accrued some 21 traffic infringements: including 14 speeding offences, one of which was in a school zone; an offence of driving unlicenced; an offence of using a mobile phone whilst driving; and two offences of driving without a seatbelt. The traffic record indicates that eight of these offences, which include six speeding offences and an offence of not giving particulars after a crash, took place in the period between 2014 and 2023. The traffic record indicates that the Applicant’s driver licence has been suspended on two occasions due to demerit points, neither of which were implemented on the basis of the Applicant having good behaviour conditions imposed. Since 2015, the Applicant has had his licence suspended on two occasions for ‘Non-Compliance – Medical Reasons”, most recently in 2019 for a period of approximately nine months.

43. A number of the Applicant’s traffic matters have gone before the Local Court or the District Court, and on occasion the Applicant has had matters in his traffic record dealt with by way of s 556A of the Crimes Act 1900 (NSW) (repealed) or s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Failures to give particulars

44. The Respondent relied on two instances in which it was submitted that the Applicant had been involved in traffic incidents and failed to give his details or particulars at the scene. The first occurred on 26 March 2008 (2008 incident) and the second one on 7 December 2020 (2020 incident).

45. In support of the 2008 incident, the Respondent relied on a COPS Report Event Reference No: XXX593 created on 26 March 2008 (2008 COPS Report) (part exhibit R1). The narrative indicates that there was a collision between a car and a motorcycle parked in front of it. A witness advised police that they saw the driver get into the car, before driving forward where the car then collided with the motorcycle, causing the motorcycle to fall to the ground and suffer damage. The witness observed the driver of the car to drive away from the scene without stopping or getting out of the vehicle. This witness provided police with a description of the car and the registration number.

46. The car was found to be registered to a company, of which the Applicant was the manager. When contacted by telephone on 8 April 2008, police recorded that the Applicant was “quite un-cooperative…and continued stating that he was too busy to meet with police…as he was ‘a busy man’”. On 9 April 2008, police recorded that they met with the Applicant who completed a Form of Demand and advised police that he was “most likely” the driver, but he would have to confirm. Police spoke with the Applicant again on 26 April 2008 and he advised that he believed that he was “probably the driver…although he cannot be sure”. On 23 June 2008, the Applicant was contacted by police and told that he would be issued with an infringement notice. It is recorded that the Applicant became angry and demanded to speak to the officer’s supervisor. The Applicant then stated, “that he was being unfairly treated and the punishment was too harsh.”

47. Whilst the 2008 COPS Report indicates that an infringement notice was issued, it does not appear on the Applicant’s traffic record.

48. The Applicant did not refer to the 2008 Incident in his evidence or adduce any further evidence in relation to it.

49. In relation to the 2020 incident, which involved the same car as the 2008 incident, the Respondent relied on a NSW Police Facts Sheet (Facts Sheet) and a COPS Event Ref No: XXX070 (2020 COPS Report) (part exhibit R1). The Facts Sheet records that on 7 December 2020, this car was part of a line of traffic stopped at a red right hand turn signal, at which time the Applicant reversed the car into the stationary vehicle behind him causing damage to that vehicle. The Applicant and the other driver then got out of their cars to inspect the damage, and a conversation then ensued, during which the Applicant was asked by the other driver to show his driver licence. The Applicant said, “Fuck off, you’re being ridiculous, there’s no damage.” The Applicant then told the other driver to “Fuck off” when he was asked for his details. The Applicant got back into his vehicle and drove off, but the other driver took a photo of his registration plate. Police attended the scene of the collision and took photographs of the damage to the other vehicle.

50. On 16 April 2021, police attended the Applicant’s address in relation to the 2020 Incident, as the Applicant was the owner of the business that the car was registered to. The police utilised body worn video and were told by the Applicant that he “was unable to tell police who was driving the vehicle at the time but would be able to find out”. The Applicant also “had objections to the entire incident, saying that he believed [the other driver] was attempting to make a fraudulent insurance claim.” He then told police that he was a lawyer and that a “driver was not required to exchange details unless it was deemed that there was damage to the other vehicle.” The Applicant was advised by police that this was not correct.

51. On 19 April, the Applicant called police and said, “I’ve actually had some time to think and it was I who was the driver”. He went on to say (sic), “He came up to me and touched me, I had no reason to hit his car…There was no damage, and no one got hurt, he started talking to me saying that the grill had been damaged from the bumper bar being pushed back”. He also told police that he had not exchanged particulars with the other driver because “Nobody got hurt, there was no scratch. He’s the one that touched me anyway…it wasn’t a collision, it was just a gentle touch”. The Applicant went on to report that “[the Applicant] wanted to go home to go to the toilet at the time, and the vehicle behind the [other driver’s] vehicle was tooting its horn, which explains why he left the scene.”

52. The Applicant subsequently appeared before the Local Court in relation to this matter and pleaded guilty to the offence of not giving particulars after crash. The Applicant’s traffic record indicates that on 2 November 2021, the offence was found to be proved and dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act. This outcome was conceded by the Applicant during the course of the hearing.

Consideration

Traffic history

53. Senior Member Montgomery held in Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [102] that “the Applicant’s repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety”. I accept that an applicant’s disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence.

54. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Schahill said at [57] and [81]:

57.   The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt – the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public’s or his own safety.

…

81.   The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.

55. The Tribunal must consider all relevant matters and as the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25]-[25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

56. Whilst the Applicant’s traffic record includes matters that have been dealt without a conviction being recorded, the Tribunal is able to have regard to such matters in administrative review applications, as it is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70: (Esterman) at [30].

57. The Applicant’s traffic record was not disputed by him and on the basis of the documentary evidence adduced by the Respondent, I am satisfied that it is accurate. The Applicant was aged 40 years old at the time of the first traffic infringement in 1980 and as set out above, I am satisfied that he has accrued some 21 traffic infringements since that time, including some 14 speeding matters.

58. Whilst the Applicant was taken in his evidence to the outcome of the court proceedings relating to the 2020 incident, the Applicant did not provide any explanation for the matters in his traffic record.

59. It is concerning that whilst the Applicant has in the past been subject to numerous financial penalties and fines imposed as the result of his traffic matters, as well as having been subject to good behaviour conditions on his driver licence and having the benefit of having matters dealt with by way of s 556A of the Crimes Act and s 10 of the Crimes (Sentencing Procedure) Act. Of particular concern, the Applicant’s traffic record contains five traffic offences in the three-year period from September 2020 to September 2023, including four speeding offences and the offence of failing to provide particulars relating to the 2020 incident.

60. As referred to previously, the Applicant said in his request for an internal review dated 10 December 2023, that his “driving ability and record remain very sound”. It follows from my findings above, that I do not accept the Applicant’s characterisation of his driving record as “sound” and in my view, the Applicant has shown on ongoing disregard of traffic laws and regulations, with the frequency of his offending increasing in the period from 2020 to 2023. I am satisfied that the Applicant’s traffic record is significant.

61. Whilst I have had regard to the various character references relied upon by the Applicant, none of them make reference to the Applicant’s traffic record, including to the 2020 incident. In circumstances where it is not clear that these referees are aware of the Applicant’s traffic history, I give them no weight in my consideration of this matter.

62. On the evidence before the Tribunal, I am not satisfied that the Applicant has demonstrated any remorse or contrition in relation to his traffic history or shown any apprehension or insight into the risk to public safety caused by his conduct, particularly from his multiple speeding offences over an extensive period of time, including the four speeding matters in the three years between 2020 and 2023. 

Failures to give particulars

63. In light of the Respondent’s documentary evidence adduced in relation to the 2008 incident and 2020 incident, which was not disputed by the Applicant, I am satisfied that the Applicant’s conduct as set out in the 2008 COPS Report and the Facts Sheet is accurate. Whilst the outcome of the 2008 incident is not apparent from the evidence before the Tribunal, and the 2020 Incident was dealt with by way of s 10 of the Crimes (Sentencing Procedure) Act, as previously referred to, Esterman provides that it is the conduct rather than the conviction that is of concern to the Tribunal and I have regard to this conduct in my consideration of this application for review.

64. As previously referred to, it is an underlying principle of the Act that the possession and use of firearms is a privilege that is conditional on the overriding need to ensure public safety. In such circumstances, there is an expectation by the public that licence holders who have been provided with the privilege of a firearms licence will demonstrate candour and frankness in their dealings with the regulator, namely the NSW Police Force.

65. The Tribunal in DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 said at [57] that “[t]he level of co-operation and frankness demonstrated by a licensee in dealing with the regulator is indicative of the licensee’s character” and at [58], “[a] licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator.”

66. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 23, the Appeal Panel of the NSW Civil and Administrative Tribunal said at [25] that “…it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.” Further, “the case law indicates that when considering future risk, the Tribunal must consider the past conduct of the applicant as a significant guide”: Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

67. I am satisfied that at the time of both the 2008 incident and the 2020 incident that the Applicant held a firearms licence. Whilst neither the 2018 incident or the 2020 incident related to the Applicant’s firearms licence, I am satisfied that the Applicant demonstrated a low level of co-operation with, and assistance to, the police in relation to the 2008 incident and further, became angry and querulous when advised by police that he would be issued with an infringement notice in relation to the matter. I am also satisfied that the Applicant was querulous and displayed a very low level of co-operation with police and the other driver in relation to the 2020 incident, and that he was not frank or candid in his various dealings with police in relation to the incident.

Matters relating to Applicant’s firearms licence

68. The Respondent relied on a number of matters relating to the Applicant’s firearms licences and his possession of firearms and these are set out below.

Failures to renew firearms licence

69. As previously referred to, the Applicant has held firearms licences at various times since 1998 and the Respondent contended that the Applicant consistently failed to renew his firearms licence in a timely manner.

70. Having regard to the Respondent’s documentary evidence, including the Applicant’s Firearms Licencing History (exhibit R1), it appears that the Applicant has failed to apply to renew his firearms licence or apply for a new licence prior to the expiration of his current licence on a number of occasions.

71. The Applicant did not dispute the accuracy of his Firearms Licencing History, or the documentary evidence relied upon by the Respondent in support of this. Accordingly, I am satisfied in relation to the matters set out below:

1. That the Applicant was issued with a category AB firearms licence on 11 October 2000 which expired on 14 March 2005 and that on 30 November 2006, the Firearms Registry requested police to seize all of the Applicant’s firearms as he was no longer authorised to use and possess firearms. The Firearms Registry also wrote to the Applicant on that same day advising him of this and noting that that 9 firearms were registered in the Applicant’s name.

2. That on 12 December 2006, the Applicant sought an internal review of the proposed cancellation of his firearms licence and stated that he had not received any communication about the expiry of his licence and noted that his firearms had not been used and had remained locked in his firearms safe for the last two years. In a letter dated 19 December 2006, some 21 months after the expiration of the Applicant’s firearms licence, the Applicant advised that he had “inadvertently recently allowed to lapse due to not receiving any renewal notice”. The Applicant subsequently lodged an application for a firearms licence that was received by the Respondent on 27 December 2006, some 21 months after the expiration of his previous firearms licence.

3. That a category ABG firearms licence was subsequently issued to the Applicant on 25 July 2007 which expired on 7 September 2012. An application for a new firearms licence was subsequently lodged by the Applicant and received by the Respondent on 17 December 2012, more than three months after the expiration of the Applicant’s previous firearms licence.

1. That a category ABG licence was subsequently issued to the Applicant on 4 March 2013 which expired on 26 March 2018. An application for a new firearms licence was subsequently lodged by the Applicant and received by the Respondent on 14 May 2018, almost two months after the expiration of the Applicant’s previous licence.

2. That a category ABG firearms licence was issued to the Applicant on 10 October 2018, which expired on 18 October 2023. As previously referred to, the Applicant lodged the Application on 8 November 2023, some three weeks after the expiration of the Applicant’s previous licence. The Application was refused on 16 November 2023 and in his internal review request dated 10 December 2023, the Applicant indicated that he had received the “standard written notification for the renewal of my firearms licence and regrettably inadvertently overlooked doing so before it lapsed”.

72. I am satisfied that the Applicant failed to lodge an application for a firearms licence prior to the expiration of each of the firearms licences held by him in the period from 2005 to 2023, with the periods between the expiration of the Applicant’s firearms licence and the lodgement of a new application ranging between three weeks and 21 months.

Properly and safely store firearms

73. The Respondent submitted that there was evidence in the s 58 documents and in the affidavit of Sergeant Kelly that the Applicant had failed on a number of occasions to properly and safely store his firearms. The Respondent relied on COPS Report Event Ref No: XXX545 created on 16 July 2009 (the 2009 COPS Report (part exhibit R1). The 2009 COPS Report indicates that the Applicant was a current firearms licence holder at that time and that police attended the Applicant’s residence on 6 July 2009 for a firearms and safe storage inspection.

74. The 2009 COPS Report indicates that the cabinet in which the Applicant stored his firearms failed safe storage requirements as it was not bolted to the ground or wall. Police allowed the Applicant a period of one month to have his storage cabinet meet requirements, with a further inspection to be conducted at that time and no other action, including criminal action, was taken against the Applicant.

75. The 2009 COPS Report also noted that the Applicant had various antique pistols registered to his NSW firearms licence at that time. The Applicant advised police that these firearms had been stolen in 1970’s and that local police had been involved in that report and that he no longer had those antique pistols in his possession. It was noted that the Applicant had been asked to complete a statutory declaration to this effect to be provided to the Firearms Registry.

76. The Respondent also relied on COPS Report Event Ref No: XXX441 created on 29 November 2012 (2012 COPS Report) (part exhibit R1). On that date, police attended the Applicant’s residence to seize his firearms after his firearms licence had expired on 7 September 2012. At that time, police noted that whilst the Applicant’s storage safe was secured to the concrete floor, it could be moved from side to side but could not be picked up and removed. When police checked the five firearms to ensure that they were not loaded, they were unable to open one of the firearms. All of the firearms were taken to Surry Hills Police Station, where a weapons trainer could still not open one of the firearms, and was required to isolate the firing mechanism. The firearms were subsequently returned to the Applicant on 10 February 2014, following confirmation that the Applicant had been issued with a new firearms licence on 4 March 2013.

77. In his affidavit, Sergeant Kelly stated that prior to the Applicant’s firearms licence expiring on 18 October 2023, a firearms renewal notice was sent to the Applicant and on 20 September 2023, a warning notice of his firearms licence expiry was sent to him. The Applicant’s firearms licence expired on 18 October 2023 and Sergeant Kelly stated that the Applicant was not authorised to possess firearms from that date. Sergeant Kelly became aware of these matters as the result of COPS Report Event Ref No: XXX 581 (part exhibit R2). This COPS Report was created on 1 November 2023 and requested police assistance to investigate criminal offences and seize firearms held by the Applicant.

78. On 16 November 2023, COPS Report Event Ref No: XXX 493 was created to request that police serve a Notice of Refusal on the Applicant and seize the Applicant’s licence card and all firearms. On 28 November 2023, COPS Report Event Ref No: XXX 170 was created and requested urgent police assistance to serve the Notice of Refusal on the Applicant and to seize the Applicant’s firearms, firearms parts, and ammunition (part exhibit R2).

79. Sergeant Kelly and another officer attended the Applicant’s premises on 20 November 2023. Sergeant Kelly stated that the Applicant was cantankerous and irritated that police had arrive and continued to express this frustration whilst police were present and that the Applicant had said words to the effect that “society are making decisions to take away my licence because you think I am stupid.” The Applicant led police to his safe and unlocked it, and Sergeant Kelly said that the Applicant was argumentative and obstinate about the situation, continuously complaining about his firearms being seized.

80. In his affidavit, Sergeant Kelly said that the Applicant surrendered five firearms to police and that after inspecting them, Sergeant Kelly became concerned that some of the firearms appeared to be in a state of serious neglect and that it was apparent that there had been no maintenance or upkeep on them for a lengthy period, which was evident by the amount of rust on the firearms. Sergeant Kelly referred to safety being of the utmost importance when removing firearms from a safe to ensure that they were not in a “loaded” state with a round or bullet in the chamber. He said that the Applicant’s firearms were extremely rusted and in poor condition, which meant that police were unable to move the firearms bolt as the bolt was seized due to rust, and this was the case for most of the Applicant’s firearms.

81. Sergeant Kelly’s evidence was that it is necessary to remove the bolts from firearms in order to have a clear view into the chamber to ascertain whether there is a round in the chamber, and if so, to eject it and render the firearm safe. He stated that he asked the Applicant “Are they rendered safe?” to which the Applicant replied, “I don’t know”. Sergeant Kelly said the firearms were then seized and that he had a recollection of being very concerned about the safety of his colleagues, especially those in the Exhibit Room as they were unable to definitively conclude the firearms had been rendered safe.

82. In cross-examination, Sergeant Kelly confirmed his understanding that the Applicant’s firearms licence had expired on this occasion as well as on previous occasions. He also acknowledged that the Applicant had not been charged with any offence in relation to the possession of the firearms after his firearms licence had expired and that police were not minded to charge him at “this stage”.

83. The Applicant acknowledged in cross-examination that one of the shotguns seized by police was jammed in a closed position but that he believed that the other four firearms were fine. He said that he did not know their current condition at that time as he had not used them since “before COVID”.

Consideration

84. It is of course an underlying principle of the Act to improve public safety by promoting the safe and responsible storage and use of firearms and one of the objects of the Act is to ensure that firearms are stored and conveyed in a safe and secure manner. The legislation provides for the safe keeping and storage of firearms, and such contraventions may constitute a criminal offence. Section 24 of the Act provides that contraventions of the Act or the regulations can result in the revocation of a firearms licence, whether or not the licence holder has been convicted of an offence for the contravention.

85. This application for review relates to a refusal of the Applicant’s firearms licence by the Respondent rather than a revocation of that licence, and I accept that the Applicant has never been convicted or charged in relation to a contravention of the Act. However, I am satisfied that the Tribunal is able to have regard to the Applicant’s conduct relating to firearms when considering this application for review, even where he has not been charged or convicted in relation to that conduct: Esterman.

2009 matter

86. It is apparent that as of 6 July 2009, s 19(2) of the Act required the Applicant to comply with the relevant safe keeping and storage requirements under the Act. Having regard to the 2009 COPS Report, which was not contested by the Applicant, I am satisfied that notwithstanding that the Applicant was not charged with any offence, that the Applicant’s firearms safe was not compliant with the safe keeping requirements at that time as it was not bolted to the floor or to the wall. It is clear that the Applicant was placed on notice by the regulator at this time of his requirement to comply with the safe storage provisions in the Act.

87. In light of the reference in the 2009 COPS Report that the Applicant had advised police of the theft of certain antique pistols in the 1970’s, I am not satisfied on the available evidence of any wrongdoing by the Applicant in relation to this issue.

88. I am also satisfied on the basis of the uncontested evidence before the Tribunal, that the Applicant’s category ABG firearms licence expired on 7 September 2012 and that police seized the Applicant’s five firearms on 29 November 2012 and that he was in breach of the Act between 7 September 2012 and 29 November 2012 as he was not authorised to possess firearms following the expiration of his firearms licence. However, I am not satisfied on the available evidence that the ability to move the Applicant’s gun safe from side to side at that time amounted to a contravention of the Act.

89. I am satisfied however that at the time of the seizure of the Applicant’s firearms in 2012, that one firearm was unable to be rendered safe and that after the firearms were seized, that police were unable to open the firearm and were required to isolate the firing mechanism in order to do so.

90. I am satisfied from the evidence that the Applicant’s firearms licence expired on 18 October 2023 and that the Applicant did not lodge the Application until 8 November 2023 and that it was refused on 16 November 2023. I am satisfied on the evidence before the Tribunal, that the Applicant was not authorised to possess firearms after the expiration of his firearms licence and accordingly, that his conduct in doing so between 18 October 2023 and 28 November 2023 amounted to a contravention of the Act. I make this finding notwithstanding that the Applicant was not charged or convicted of any offence in relation to this conduct.

91. I am further satisfied that at the time that the Applicant’s firearms were seized by police on 28 November 2023, that some of the firearms were extremely rusted and in poor condition, and that the attending police were unable to determine whether the firearms had been rendered safe. I am satisfied that the Sergeant Kelly asked the Applicant if they were rendered safe, and the Applicant replied, “I don’t know.” I am satisfied from the Applicant’s evidence that he knew that one of his firearms was jammed in a closed position and that he did not know the current condition of the other firearms as he had not used them since before COVID, presumably before March 2020, more than three and half years previously. I am satisfied that the condition of the Applicant’s firearms, and his inability to confirm whether they had been rendered safe presented a potential safety risk to the Applicant, as well as to the attending police and to the police officers who were subsequently responsible for handling the firearms.

92. I am also satisfied from Sergeant Kelly’s evidence that the Applicant was argumentative and querulous in his interactions with police on 28 November 2023. I am also satisfied that in circumstances where he had not used the firearms for more than three years, and where he knew that one of the firearms was jammed close, that he was not frank and candid with police on that day in relation to the safety of the firearms.

93. It follows from my findings above, that even though the Applicant was not charged or convicted, I am also satisfied that the Applicant contravened the Act by continuing to possess firearms for periods, when he was not authorised to do so, following the expiration of his firearms licences in both 2005 and 2018.

Conclusion

94. In light of my findings relating to the Applicant’s traffic history, including my findings in relation to the 2008 incident and the 2020 incident, I am satisfied that the Applicant’s repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at public safety. In light of the Applicant’s significant and ongoing traffic record, and in the absence of any explanation from the Applicant in this regard, or evidence of insight into his conduct and the risk posed to public safety, I am not able to be satisfied that there would be virtually no risk to the community if the Applicant was to be issued with a firearms licence. Accordingly, I am satisfied on this basis alone, that the issue of a firearms licence to the Applicant would be contrary to the public interest.

95. This view is fortified by the Applicant’s failures to comply with the licensing regime created by the Act, particularly his repeated failures between 2005 and 2023 to lodge applications to renew his firearms licence or for a new licence to be issued, prior to the expiration of his current firearms licence, resulting in multiple periods where the Applicant possessed firearms when he was not authorised to do so.

96. It is an underlying principle of the Act to confirm firearms possession and use as a privilege that is conditional on the overriding need to ensure public safety. The Tribunal said in Todorovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192 (Todorovski) at [128] that the “public interest requires that all licensees be aware of, and comply with, the legislative requirements:Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91, [4].” The Tribunal further said at [129] that the ”tribunal has held that the legislation requires strict compliance:Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].”

97. I agree with the comments of the Tribunal in Todorovski, and it is evident that the Applicant has not strictly complied with the legislative requirements of either the road traffic system or the firearms legislation. Further, I have found that when dealing with police on different occasions, the Applicant has not been frank or candid with them and has not shown a high level of assistance. The Applicant has also been argumentative and querulous with police on the occasions referred to above. It is also evident from the Facts Sheet tendered in relation to the 2020 incident and the court finding, that the Applicant failed to provide particulars to the other driver, swore at him following the collision and later made disparaging comments about that driver to police.

98. In circumstances where this conduct, including the lack of candour, was not addressed or explained by the Applicant, it  suggests that there is cause to be concerned as to whether the Applicant is likely to demonstrate these characteristics in any future dealings with the regulator, namely the Respondent in these proceedings, or with members of the public, if he was to continue to hold a firearms licence. In the circumstances, I am not satisfied that there would be virtually no risk to the public if the Applicant was to be issued with a firearms licence.

99. In light of the findings that I have made, I consider that the issue of a firearms licence to the Applicant would be contrary to the public interest. I note that even without the additional findings, I would have reached this conclusion based solely on the Applicant’s traffic history and my findings in relation to the 2008 incident and 2020 incident.

100. Having made these findings, it is not necessary for me to consider the further matters relied upon by the Respondent, including whether the Applicant has a genuine reason for having a firearms licence and whether he is a fit and proper person under the Act. Without making any findings on these issues, I accept that any considerations of the Applicant’s interest in having a firearms licence is outweighed by the public interest.

101. It follows that the correct and preferable decision in this matter is for the Application to be refused and accordingly, the Decision should be affirmed.

Order

102. The decision under review is affirmed.

*

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 April 2025