Britt v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 36

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Britt v Commissioner of Police, NSW Police Force [2025] NSWCATAD 36

Hearing dates:

17 October 2024

Date of orders:

07 February 2025

Decision date:

07 February 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decisions under review are affirmed.

Catchwords:

Administrative Law –licensing - firearms licence – revocation - refusal of application – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Aubrey v The Commissioner of Police [2005] NSWADT 266

BSR v Office of the Children’s Guardian [2015] NSWCATAD 264

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

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

Keane v Commissioner of Police, NSW Police [2008] NSWADT 68

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

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

Meacham v Commissioner of Police [2020] NSWCATAP 107

Ward v Commissioner of Police [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

James Ashley Britt (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
T Lowe (Applicant)

Solicitors:
McDonald Law (Applicant)
Makinson d'Apice Lawyers (Respondent)

File Number(s):

2024/00238359

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Britt (“the Applicant”) for review of decisions by a delegate of the Commissioner of Police, NSW Police (“the Respondent”) under the Firearms Act 1996 (“the Act”). The decisions were to refuse the Applicant’s application for a Category AB firearms licence and to revoke his Category H firearms licence.

Background

2. The background is not in dispute. The Applicant was issued a probationary pistol licence in April 2009. That licence expired in June 2010. In August 2010 he was issued a category H licence. That licence was renewed in October 2012 and November 2014. It expired in August 2016.

3. In December 2023, the Applicant made an application for a Category H Sport/Target Shooting licence. He was issued a new category H firearms licence in January 2024. That licence was due to expire in March 2029.

4. In February 2024 he made an application to add a Category AB licence to his existing Category H licence for the genuine reasons of Sport/Target Shooting and Recreational Hunting/Vermin Control. That application was refused in April 2024. His category H firearms licence was suspended in February 2024 and revoked in April 2024.

5. This action was prompted by an incident that occurred on 19 February 2024 (“the February 2024 incident”).

6. The Applicant sought internal review of those decisions. The Internal Review affirmed the original decisions. The internal reviewer explained the reasoning process and provided the following details:

I have reviewed the reasoning for the original decisions and considered the material submitted by your legal representative in support of your request for a review. Based on all the material before me and for reasons which I will outline below, I agree with the decisions made.

I have reviewed your internal review submissions and acknowledge that you received cannabis cautions on two occasions in 2007 and 2013 however I note that you have come to Police attention on a total of three occasions for the use of cannabis, disclosing that you recently had a 'joint' during the incident of 28 September 2008. I also acknowledge that following these incidents you were issued with a firearms licence however your history of drug use brings the most recent incident of 19 February 2024 into significant relevance. Within your submissions you deny admitting to Police that you consumed 'ICE' however I cannot disregard the contemporaneous information that was recorded by Police during their interaction with you on that day.

Furthermore, Police advised that you exhibited symptoms of being affected by drugs which appeared to be influencing your rationalism of thought as you were displaying paranoid and delusional behaviours. These behaviours, believed to be associated with your drug use, are concerning and regardless of whether the incident of 19 February 2024 was considered a unique situation, I cannot be fully satisfied that similar incidents will not occur if you were to consume prohibited drugs in the future.

I acknowledge that you have previously held a firearms licence without coming to adverse notice for any firearm related matters (apart from allowing your licence to expire in 2016), however, this is not the only factor to consider when deciding on your continued suitability to be authorised for firearms. The incident of significant concern was only four months ago and occurred whilst you were the holder of a Category H licence. In this respect, licence holders are held to a higher standard of scrutiny when entrusted with the privilege of being issued with a firearms licence that allows unrestricted access to firearms.

In this regard, I have holistically reviewed your holdings with the NSW Police Force and note that you have also come to notice on several occasions for matters involving the misuse of alcohol resulting in two convictions in 2002 and 2004. I have also placed weight on your past conduct towards Police and while I accept that not all people will necessarily have a good rapport with police all the time, as a person who is to be entrusted with the privilege of firearm ownership it is reasonable to expect your interactions with authority to be respectful and compliant.

In conclusion, your internal review submissions have not allayed fears in respect of your drug use or alluded to your abstinence from such therefore, I cannot disregard the possible risks that may be posed to public safety (including your own safety) if you were to be authorised for firearms.

Accordingly, given the reasons outlined above, I am satisfied that the revocation of your licence and the refusal of your firearms licence application are the correct and preferable decisions.

Applicable Legislation

The role of the Tribunal

7. Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act,”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. This application is made under section 75 of the Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of firearms licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to refuse a firearms licence application and a decision to revoke a firearms licence.

8. Section 63 of the ADR Act provides that in determining and application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:

1. exercise all of the functions that are conferred or imposed by the Act on the Respondent; and

2. affirm the Decision, vary the Decision, set aside the Decision, and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.

9. There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.

10. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.

11. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

…

[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

12. As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:

… a practical or "forensic" burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

13. In determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

14. The underlying principles of the Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

15. The underlying principles set out in section 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].

16. Section 11(7) of the Act provides:

11 General restrictions on issue of licences

…

1. 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.

...

The public interest

17. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

18. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

19. In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

20. Section 3 of the Act emphasises that firearms possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. I expressed this view in Aubrey v The Commissioner of Police [2005] NSWADT 266 at paragraph [21] and it has been followed in numerous decisions of this Tribunal.

21. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

22. Ward v Commissioner of Police dealt with the issue of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

23. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 paragraphs [64] – [66].

24. In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Issue for Determination

25. The Tribunal’s task is to determine the correct and preferable decision. This requires the Tribunal to form a view as to whether it would be contrary to the public interest for the Applicant to be given access to a firearm.

Material before the Tribunal.

26. The Respondent relies on a bundle of documents (“the section 58 documents”) lodged pursuant to section 58 of the ADR Act. The section 58 documents include reports related to various occasions on which the Applicant had come to the attention of police. Notably, the section 58 documents include an event record from the Respondent’s COPS database that sets out details in relation to the February 2024 incident. The Respondent’s solicitors also made both written and oral submissions.

27. The Applicant relies on his own evidence and correspondence from Dr Roy Sugarman, a Clinical Psychologist, with respect to consultations and scheduled sessions. The Applicant attended the hearing, gave evidence, and was cross examined. The Applicant’s counsel also made both written and oral submissions.

The Respondent’s case.

28. The Respondent maintains that the decision under review is the correct and preferable decision as it would be contrary to the public interest for the Applicant to hold the licences. The Respondent relies on reports contained in the section 58 documents. The internal review reasons for decision provides some detail in regard to the events that are the subject of those reports:

• In March 2002, the Applicant was convicted of 'Drive with low range RCA', receiving a $350 fine and disqualified from driving for six months.

• In November 2004, the Applicant was convicted of 'Drive with middle range RCA', receiving a $1000 fine, a Section 9 Bond and ordered to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation. The Applicant was also disqualified from driving for two years, participating in an alcohol interlock program.

• In July 2007, Police had cause to attend the Applicant’s residence and noticed a small quantity of cannabis on the kitchen bench. The Applicant was issued with a cannabis caution.

• In September 2008, the Applicant was spoken to by Police after they observed his arm fully protruding from a taxi. Police warned the Applicant to put his arm inside the vehicle or he would be issued a ticket and fined $200. Police reported that the Applicant replied with "Drugs, drugs, drugs" and laughed out loud. When Police removed the Applicant from the taxi he refused to provide identification, attempted to remove himself from police restraint, swore at Police and behaved aggressively. Police reported that the Applicant appeared to be moderately affected by alcohol, that his clothes smelt of marijuana and that he claimed to have recently had a 'joint'. The Applicant was issued with a criminal infringement notice for the offence of 'Use offensive language in/near public place/school'.

• In June 2013, a drug detection dog indicated that the Applicant may have been in possession of prohibited drugs, and he indicated that he had marijuana in his pocket. The Applicant was issued with a cannabis caution.

• In July 2013, Police stopped the Applicant’s vehicle for the purpose of a random breath test. Police reported that the Applicant became argumentative when asked to produce his driver's licence.

• In August 2014, the Applicant was requested to leave the Star Casino because he had been swearing at the roulette table. Security escorted the Applicant from the premises when he refused to leave.

• In 2016 the Applicant allowed his licence to expire but remained in possession of a firearm whilst not licenced.

• On 19 February 2024, Police were alerted to a male who was allegedly being followed and bleeding. Police were informed that the Applicant was in a distressed state due to the belief that he was being followed. Police spoke to the Applicant at his parents' residence, and he advised Police that he was being followed by two vehicles whilst he was catching an uber and that he recognised one of the drivers as "Soo" from a gun range that he attended. Police reported that the Applicant appeared to be "sweating and paranoid". The Applicant had noted the vehicles’ number plates, but Police enquiries revealed that the vehicles belonged within the neighbourhood, and that the Applicant was not being followed. Police reported that the Applicant confessed to using 'ICE', cocaine and alcohol and had advised that he had not slept in two days. Police reported that the Applicant refused to be assessed by paramedics and that he wanted to be left in the care of his parents.

29. The internal review reasons also noted that the Applicant may suffer from bouts of depression.

30. The Respondent does not dispute that the Applicant has been issued with licences under the Act notwithstanding many of the incidents that were referred to in the internal review reasons for decision. However, it is submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence for the following reasons:

• the Applicant clearly has a history of drug and alcohol use.

• the Tribunal would be extremely concerned about the Applicant’s behaviour in the February 2024 incident. While he denied ever having used "Ice", the Applicant admitted to consuming alcohol and other illicit drugs to such an extent that he experienced a psychotic episode.

• the February 2024 incident was of sufficient concern to cause both the Applicant and his family to seek the assistance of Police.

• if the Applicant had access to his firearms while in a state of believing that a member of his gun club was following him, the risk is that he might access one of his firearms to defend himself against the perceived but irrational threat.

31. The Respondent submitted that the "report" from Dr Sugarman on which the Applicant relies is bereft of any information which would assist the Tribunal to assess the risk posed by the Applicant. In particular, the report is silent as to the circumstances precipitating the psychotic episode in February 2024 and any treatment or other steps taken to ensure that a similar event will not happen again. The Respondent noted that Dr Sugarman revealed that the Applicant began attending upon him after the revocation and refusal of the Applicant’s firearms licence and has attended on three occasions.

31. The Respondent submitted that it is perhaps telling of the extent of his addiction problem that the Applicant has chosen to seek the assistance of a drug and alcohol counsellor, and further telling of his lack of insight that he failed to obtain help sooner. The Respondent further submitted that the Applicant, in his affidavit, made a number of self-serving statements which downplay his culpability. The Respondent contends that this highlights the Applicant's inability or unwillingness to take proper ownership of his own actions.

32. The Respondent submits that the firearms licensing regime is not about punishment, rather it is about identifying the possible risks to the public, including the Applicant, and then making decisions that are consistent with a need to reduce any risks to a minimum. Given the Applicant's unwillingness to abide by the law, his documented history of drug problems, and that he is currently attending a drug and alcohol counsellor, the Respondent contends that it cannot be said that any risk to public safety is minimal, fanciful, or theoretical. To the contrary, there is a real risk to public safety if the Applicant were allowed to hold a firearms licence.

33. Further, the Respondent submits that the Applicant's individual interest in obtaining his licence (which in this case is to engage in recreational target shooting) must be subordinate to the public interest in ensuring the success of that regime.

The Applicant’s case.

35. The Applicant maintains that the decision under review is the correct and preferable decision. The Applicant relies on his own evidence and a report from Dr Sugarman dated 12 August 2024 which indicates that the Applicant had attended two appointments with him in May 2024 and a further appointment in July 2024. In his evidence before the Tribunal the Applicant stated that he had also attended sessions in August 2024 and September 2024 and that he had found the sessions helpful.

36. He acknowledged the seriousness of the conduct that the Respondent has highlighted. However, he noted that many of the matters arose before the Respondent had issued his probationary pistol and category H firearms licence and he assumes that they were considered by the Firearms Registry prior to issuing those licences.

37. He denied that he had admitted to using methamphetamine or "ice". He further stated that he has never used ice.

38. With respect to the incident in September 2008, when he was issued with a criminal infringement notice for offensive language, he acknowledged that his behaviour fell short of proper expectations and was immature. He explained the circumstances of the incident and alleged that police had used excessive force against him. He stated that he found it a stressful and intimidating situation.

39. He does not dispute that he allowed his firearms licence to expire in August 2016 or that as a result of that expiry he remained in possession of a firearm whilst not licenced. He stated that he must have forgotten that his licence had lapsed and that as soon as he became aware of the situation, he handed the firearm into the police. Police recommended that his firearms licence be re-issued.

40. He noted that he had no further contact with police until the February 2024 incident – a period of over 7 years.

41. With respect to the February 2024 incident, he agreed that he had consumed cocaine, that he was affected by alcohol, and that he had not slept. He explained that this combination contributed to his diminished mental condition at the time.

42. The Applicant provided details with respect to his history of illicit drug use. He stated that he started using cannabis in about 1995 and continued until about 2000. He then resumed in about 2005 and continued until about 2017. He first used cocaine in 1999 – 2000 and that he had previously struggled as a cocaine user. Between 2005 and 2024 he rarely used cocaine and his use was mostly related to special occasions. He agreed that he has previously come to the attention of police whilst under the influence of alcohol. He agreed that in the past he had drunk alcohol to excess but that is no longer the case.

43. He stated that he has not used cannabis since 2017 and has not used cocaine since the February 2024 incident. He is continuing to receive treatment, undertaking drug and alcohol counselling with Dr Sugarman and intends to continue into the future. He said that his entry into treatment was triggered by concern expressed by his partner, his relationship with his daughter and self-realisation. He conceded that while the revocation of his licence and the refusal of the licence application were not the motivation for seeking help, these might have contributed.

44. The Applicant’s Counsel submitted that the February 2024 incident was out of character, notwithstanding the Applicant’s previous conduct. In his evidence before the Tribunal, the Applicant was truthful and honest about his drug use, against his interests. In particular, he was honest about his cocaine and alcohol use and lack of sleep leading to the February 2024 incident. He is otherwise of good character. It is submitted that the Tribunal's determination ought to be guided by the actions and steps that the Applicant has made in relation to his health. In these circumstances it is submitted that the risk of reoccurrence is slim.

45. Accordingly, it is submitted the correct decision in all the circumstances would be to set aside the decision to revoke the Applicant's Category H and refuse the Applicant's category AB firearms licence.

Consideration

46. I agree with the Respondent that the Applicant's attitude towards the regulator and his general attitude towards compliance with legislative requirements has been concerning. This attitude included disregard for laws related to the use of illicit drugs and driving whilst under the influence of alcohol and it persisted for a long time. Nevertheless, in my view it is significant that the Respondent did not express concern in relation to the Applicant's access to firearms prior to the February 2024 incident.

47. As has been noted, the Applicant did not come to the attention of police between 2016 and February 2024. It seems that over that period his attitude towards police improved markedly. In these circumstances I accept the Applicant’s contention that the February 2024 incident was out of character.

48. Nevertheless, I agree with the Respondent that the incident raises cause for concern. The Applicant was clearly affected by drugs and alcohol. He does not dispute that this was the case. While there is no medical evidence before me, it appears that he behaved in an apparently paranoid manner believing that he was being followed.

49. It is to the Applicant's credit that he has sought the assistance of a drug and alcohol counsellor. However, I agree with the Respondent that there is no medical evidence to support the Applicant's self-assessment of the progress that he has made and the likelihood of re-occurrence of similar conduct. As noted above, a party who asserts a fact has a responsibility to prove that fact. It is for the Applicant to prove the progress that he says that he has made.

50. I accept that the Applicant has sought help from Dr Sugarman. However, the report from Dr Sugarman is of little assistances as it merely indicates the dates on which he attended with Dr Sugarman. It does not address the February 2024 incident and does not explain any treatment or other steps taken to ensure that a similar event will not happen in the future.

51. As noted above, section 63 of the ADR Act provides that the Tribunal is to determine the correct and preferable decision having regard to the material before it. In my view, the absence of evidence from Dr Sugarman or some other practitioner is significant. I have no independent evidence on which I can assess the possible risks that may be posed to public safety if the Applicant were to be authorised to possess firearms.

52. In the circumstances, I am unable to be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm.

53. On the material before me, it is my view that the correct and preferable decision is to affirm the decisions that are under review.

54. I note, however, that if the Applicant were to obtain evidence to support his self-assessment of the progress that he has made and provide an indication that there is virtually no risk to public safety if he were given access to a firearm, the Respondent may well form a different view should he reapply for these licences.

Order

The decisions under review are 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: 07 February 2025