Carroll v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 197

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Carroll v Commissioner of Police, NSW Police Force [2023] NSWCATAD 197

Hearing dates:

8 June 2023

Date of orders:

28 July 2023

Decision date:

28 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

(1) The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing –- Public Interest – Criminal History

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (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 (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357

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

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

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Graham Carroll (Applicant)
Commissioner of Police (Respondent)

Representation:

Applicant (Self Represented)
McCullough Robertson (Respondent)

File Number(s):

2023/00024537

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of the internal review decision of the respondent dated 28 November 2022 which refused his application for a Category AB Firearms Licence.

Background

2. On 26 February 2022 the applicant applied for a firearms licence. On 5 April 2022 the respondent refused that application. On 29 April 2022 the applicant sought internal review of that decision. On 28 November 2022 an internal review decision was made, affirming the refusal, pursuant to section 11(7) of the Firearms Act 1996, on the basis that issue of the licence would be contrary to the public interest.

Evidence

3. The applicant tendered the following documents: personal references from C. Manning and B. Rochaix; Membership documents from the Sporting Shooters Association Hunter District Hunting Club; Certificate of Completion of NSW Firearms Licence Qualification Course.

4. The respondent filed documents under section 58 of the Administrative Decisions Review Act 1997, which included a number of NSW Police and Court records. The first of those documents is a “ NSW Police Force Criminal History – Bail Report” for the applicant. It contains entries from 1993 to 2007. They include: in 1993, Malicious Damage – Proved, dismissed s.556A; Breach Domestic Violence Order – Fined; in 1994, Breach of Domestic Violence Order – Fined; in 1999, Drive with Middle Range PCA – recog s556A; in 2007 Common Assault – Bond s.9 6 months and Strictly Comply with Current Domestic Violence Order. There are also numerous NSW Police reports, known as COPS Event References, concerning the applicant. These relate, variously, to domestic violence matters, disputes with neighbours and a landlord. A common theme to these reports is alleged aggressive behaviour by the applicant.

5. At the Tribunal hearing the applicant gave sworn evidence by audio-visual link and was cross examined. He said he was the victim in this matter and that the domestic violence and common assault matters were dismissed and that he won in the Family Court. The Family Court matter involved him being granted custody of his two sons. He said he is not a violent person. He said he had worked in security for 30 years; he is now a disability pensioner and wants a firearms licence to participate in shooting with his now adult sons as a joint sporting activity. He also introduced a new reason, being to shoot on his brother’s farm. He said he didn’t know he had to state that additional reason before. He said he had held a firearms “paper” licence some 30 years ago and that he has undertaken the necessary training for a licence. He said the landlord had taken advantage of and mistreated him. He said he had 3 months to appeal the common assault charge but didn’t. He said the Family Court had decided in his favour on the domestic disputes. When it was put to the applicant that the 2007 common assault charge was not revoked and that he was placed on a bond, he became agitated and began to swear.

6. After the hearing, the applicant submitted by email, on 14 June 2023, that he “…felt intimidated by the lawyer bringing up the past of 1993 where I was framed, taken advantage of by the system of my ex defacto all over me when I was granted custody of my child at the time… the lawyer didn't get all the facts… Nor did they get the facts of my previous rifle licence to go in my favour… I felt wrongly treated by the lawyer’s firm… I felt targeted as a criminal when in fact I’m the victim here…so I ask…to consider in the past ten years I have no conviction.”

7. In reply, the respondent wrote “We do not intend to provide any further submissions in relation to the substantive matter but note, for the record, that we deny any suggestion that the applicant was wrongly treated in the hearing.”

Respondent’s submissions

8. The respondent submits it is not in the public interest for the applicant to be granted a firearms licence. The respondent details of variety of incidents of concern contained in the section 58 documents, as follows:

1. 23 March 2001, the applicant's former partner informed police that the applicant pointed a knife to her throat during a verbal argument.

2. 25 August 2006, the applicant’s son informed police that the applicant and his former partner were involved in an argument which resulted in the applicant threatening and subsequently assaulting both his former partner and son. The applicant’s son also informed the police that the applicant has been verbally and physically abusive for the past four years.

3. 12 April 2007, the applicant's former partner left the applicant and took their son to her former husband's residence. The applicant separately went to the former husband’s residence and when he took his son from his former partner a struggle ensued resulting in the applicant elbowing her in the jaw causing her to fall to the floor. The applicant was charged and subsequently convicted of common assault and became subject to a good behaviour bond for a period of six months.

4. 2 December 2010, the applicant's former partner informed police that the applicant was making harassing and intimidating phone calls to her.

5. 4 December 2011, the applicant's former landlord reported to police that she was involved in a verbal argument with the applicant and that later that day, her daughter saw the applicant drive past her house three times.

6. 13 April 2012, the applicant's former landlord reported to police that the applicant had followed her in his vehicle on her walk home and drove past her house.

7. 26 February 2016, the applicant and his neighbour were involved in an argument resulting in police being called.

8. Around 23 March 2016, the applicant's neighbours returned to their residence to find a number of smashed beer bottles on their rear balcony and bags of rotten prawns thrown onto their roof. The neighbours suspected the applicant to be responsible.

1. The respondent also submits, the fact that the applicant has been issued with seven interim apprehended violence orders (IAVO) and one apprehended violence order (AVO) over the past two decades at regular intervals illustrates a pattern of behaviour that is inconsistent with the requisite level of trust and confidence necessary to be granted a firearms licence.

9. The respondent submits if the applicant were to use and possess a firearm, it would be against the public interest and create an unacceptable risk to public safety for the following reasons:

1. The applicant's record of interactions with police reveals a concerning tendency towards aggressive or threatening behaviour; and

2. The applicant’s domestic history shows a lack of self-control on the part of the applicant and this poses a risk to public safety were he to be authorised to use and possess firearms.

Applicant’s submissions

10. The applicant submits that he is not a violent person, that he is a victim, that in fact the common assault charge was a result of him protecting his son against violence from his former partner and that there is no substance to the allegations made by his former landlord and his neighbours and that he has had a “clean record” for at least the past 10 years.

Legislative framework

11. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly:

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

12. Section 11 of the Act relevantly provides:

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

…

(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.

Consideration and findings

13. Under s 63 of the Administrative Decisions Tribunal Act the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).

14. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.

15. 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 refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

16. The Appeal Panel has described the "public interest" as "an inherently broad concept giving the appellant [the Commissioner] 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 at 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Huckel v Commissioner of Police [2008] NSW ADT 347, [41].

The public interest: section 11(7)

17. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

18. The Applicant requires a firearm to spend time with his sons shooting as a sporting activity. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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]. The concept includes 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] 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

19. 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. Although Ward was a case on the “fit and proper person” test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

20. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

21. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

22. The evidence of risk in this matter is to be found in the police and court records. The applicant claims there is no substance to those allegations and that he is the victim. I do not accept that claim and I prefer to rely on the formal records, which show that across two decades the applicant has been the subject of seven IAVOs and one AVO. Moreover, I observed the applicant give oral evidence and saw him become agitated and begin to swear under the pressure of cross-examination. The applicant claims he was intimidated during that cross-examination. I saw and heard nothing in the examination that could be reasonably objected to and I am satisfied it was not improper or inappropriate. No doubt it was uncomfortable for the applicant and that much was obvious from his behaviour, but it was not wrong. His oral evidence and my observation of his behaviour and the content of the police and court records, confirmed for me the appreciable risk to the community of the applicant having use of a firearm.

23. In all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant.

Decision

1. The decision under review is affirmed.

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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: 28 July 2023