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[2020] NSWCATAD 255

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EMB v Commissioner of Police [2020] NSWCATAD 255

Hearing dates:

8 October 2020

Date of orders:

20 October 2020

Decision date:

20 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

Catchwords:

FIREARMS LICENCE - fit and proper person - serious charges unrelated to firearms dismissed at trial – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Criminal Procedure Act 1986

Firearms Act 1996

Cases Cited:

AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228

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

Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254

Bronze Wing International Pty Limited v Safe Work New South Wales [2017] NSWCA 42

CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55

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] VicRp 6; (1991) 1 VR 63.

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

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

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144

Manning v Commissioner of Police [2020] NSWCATAD 111

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) 1FCR 353 at 357

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

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794

Re Percival and Australian Securities Commission (1993) 30 ALD 280

Sawires v Commissioner of Police [2010] NSWADT 4

Tannous v Commissioner of Police [2011] NSWADT116

Tzoudas v Ministry of Transport [2008] NSWADT 350

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

Wentworth v Rogers (1984) 2 NSWLR 422

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EMB (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
C Nowlan (Applicant)

Solicitors:
Johnson & Sendall (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00152964

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act) 2013, the publication of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit, is prohibited.

Pursuant to ss. 64(1)(b) and 64(1)(c) of the CAT Act, the publication and reporting of the hearing of the confidentiality application, including any evidence given during that hearing, is prohibited.

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the applicant is prohibited

REASONS FOR DECISION

Background

1. The Applicant has been licensed to possess and use firearms since 1993. Most recently, in 2013, he was licensed to possess and use firearms under a Category ABC licence. On 30 May 2017, that licence was suspended. While suspended, his licence expired and, on 19 June 2019 he applied for a Category AB licence. That application was refused on the basis that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant sought internal review of the refusal decision but, as he was not notified of the outcome of the review within 21 days, he brought an application for review to this Tribunal.

The Legislation

2. The general principles of the Firearms Act 1996 (‘the Act’) are set out in s.3 of the Act:

3 Principles and objects of Act

1. The underlying principles of this Act are:

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

   (b)   to improve public safety:

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

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

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

2. The objects of this Act are as follows:

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

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

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

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

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

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

   3. The Act, in setting out restrictions on the issue of licences, provides, relevantly:

...

1. 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

...

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.

   4. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. Neither, as the Applicant’s counsel asserted, is there a “presumption of innocence”, as is discussed below.

Evidence

5. In addition to the s 58 documents, I had before me a statement by Detective Senior Constable David Turner dated 10 September 2020, and also his confidential statement. Detective Turner was the officer in charge of the two investigations into allegations of child sexual assault against the Applicant. The Applicant provided an affidavit, and letters from 17 character witnesses. No witnesses were called to give evidence, nor were any witnesses required for cross examination. Consequently, the hearing proceeded solely on the basis of the material before me and the parties’ submissions, both written and oral.

CONSIDERATION

6. In addition to its original contention that it is not in the public interest for the Applicant to hold a firearms licence, the Respondent also contended that the Applicant is not a fit and proper person to hold a firearms licence. It relied on the Applicant having been charged with a number of serious offences concerning child sexual assault (although the charges were ultimately withdrawn); that the Applicant had been found guilty of common assault in the ACT (which occurred in 2007); that the Applicant has a substantial history of traffic offences (both in NSW and the ACT); and the Applicant had failed to properly identify his genuine reasons for using or possessing firearms. Each is discussed in turn.

Allegations of Sexual Abuse

7. In 2017 the Applicant was charged with a number of offences pursuant to the Crimes Act 1990 including:

1. three offences pursuant to s 610(2) of the Crimes Act 1900, in that he committed an aggravated act of indecency with a victim under 10 years of age;

2. two offences pursuant to s 610(2) of the Crimes Act 1900, in that he incited a victim under 10 years of age to commit an indecent act;

3. an offence pursuant to s 61M(2) in that he committed an aggravated indecent assault against a person; and

4. an offence pursuant to s 66A(1) in that he had sexual intercourse with a person under the age of 10 years.

8. The offences date from approximately 2004, when the alleged victim was aged 5 or 6. She is a close relative of the Applicant. The Applicant denied the charges and continues to do so.

9. Attached to Detective Turner’s statement was a brief of evidence which included statement from the alleged victim dated 9 November 2016 to the effect that:

1. the Applicant would pick her up from school, take her shopping using words to the effect that "if I take you shopping and buy you things, then you have to do something for me";

2. he would call the alleged victim into his room at his mother's house, sit directly behind her masturbating and put pornographic movies on in front of her, and say words to the effect of "now you can't tell your mum and dad about this";

3. the alleged victim stated that this behaviour happened "virtually every school day" the Applicant took her home from school from kindergarten in 2003 to 2009 and that he masturbated in front of her several hundred times;

4. the Applicant took her on holidays to the Gold Coast, and when the alleged victim was8 or 9, he would play pornographic DVDs on his laptop in the hotel room and masturbate in front of the alleged victim every two days;

5. when the alleged victim was seven years old, the Applicant put a pornographic movie on in his room and stood near the window to keep a look out for his mother whilst masturbating in front of the alleged victim;

6. in late 2007, the Applicant bought the alleged victim a purple vibrator, which he placed between her legs and asked her to use it whilst he masturbated;

7. the alleged victim described that when the Applicant would masturbate in front of her he would be wearing a shirt or t-shirt on his top and wouldn't be wearing any pants or underpants;

8. in about mid-2006, the alleged victim was seated at the Applicant's computer whilst the Applicant sat behind her masturbating. The Applicant's mother came into the house and opened the bedroom door. The Applicant jumped up and closed everything down just as his mother got there; and

9. as a result of the abuse, the alleged victim had self-harmed her arms and legs a number of times and attempted suicide.

10. The detailed evidence provided by the alleged victim contains clear descriptions of the Applicant's room, what he was wearing, and the videos that he would watch as well as their interactions together, including:

1. gifts the Applicant bought for her;

2. pictures of her on the Applicant's motorcycle, including a burn she got on her ankle from the exhaust

11. Statements were also available in the brief of evidence from:

1. the alleged victim's mother, who confirmed that her daughter had told her about shopping trips the Applicant took her on, including with another alleged victim, and finding pornographic video tapes in the Applicant's room. She also described a phone conversation she overheard between the alleged victim and the Applicant, during which the Applicant said "What's in it for me?"

2. the alleged victim's father, who described the Applicant asking him questions about deleting porn from his computer, and finding images of naked children on his brother's computer, which he deleted.

12. While the Applicant was on bail in relation to the offences regarding his relative, another alleged victim (the second alleged victim) made complaints of aggravated sexual assault and aggravated indecent assault by the Applicant in 2011/2012 when she was eight years old. Statements by the second alleged victim (as well as another child who also claimed she was assaulted) were attached to Detective Turner’s statement. The evidence was that:

1. the Applicant would take them shopping to a [named] Mall and buy them clothing and shoes and get their nails done at a beautician. He would also take them for meals, including at a [named] restaurant,

2. after the shopping trips, the Applicant would take them back to his mother's house and made them watch pornography on his laptop,

3. the Applicant had had sexual intercourse with them, with one stating that she tried to get away but "he was holding her down and she couldn't get away as he was so much stronger",

4. the only reason the Applicant stopped was because the second alleged victim asked to go to her mother's workplace and before they went the Applicant told her "don't tell anyone"; and

5. one alleged victim described the Applicant touched her on her breasts and backside on the outside of her clothing.

13. One of the second alleged victims also reported to Police that she encountered the Applicant at her mother's workplace. At the time he was on a computer and told the alleged victim "I'm practising for when I go to Sydney. I'm meeting a girl in Sydney called Naomi. She's a babysitter. I'm watching porn to plan what I'm going to do to her and the kids".

14. As part of the investigation into the allegations made by the two further alleged victims, Police obtained statements from one of the alleged victim's mother and sister, who confirmed that the alleged victim had told them about the alleged assault.

How is the Tribunal to deal with the allegations?

15. It was contended on the Applicant’s behalf that there was a “preliminary issue” to be determined, namely how the Tribunal was to deal with the charges of child sexual assault that had been withdrawn, but upon which the Respondent nonetheless relied. This in turn included a discussion on the standard of proof to be applied by the Tribunal and the onus of proof.

16. It is clear from Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64] that, irrespective of whether charges were proved beyond reasonable doubt, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30].

17. The Applicant referred to Manning v Commissioner of Police [2020] NSWCATAD 111 where SM Emeritus Professor Walker discussed, at [33], that the relevant standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, and observing that these are not adversarial proceedings.

18. In Bronze Wing International Pty Limited v Safe Work New South Wales [2017] NSWCA 42 Leeming JA held (Basten JA & Gleeson JA concurring) at [127]:

In those circumstances, his Honour 's reasons at [77] … reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings [Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66] reflects a more general approach to fact finding, which is applicable by analogy to NCAT. (Tribunal emphasis)

19. It was submitted on the Applicant’s behalf that while the rules of evidence do not apply in the Tribunal the “presumption of innocence” does. Such a submission is misplaced; there is no burden or onus of proof in the Tribunal: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013   the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. I have observed that there was no evidence from the Applicant, other than his affidavit which focused on his history as a shooter.

20. The Applicant’s counsel was critical of the Respondent’s reliance upon what he described as “hearsay”. He asserted that the first alleged victim was tested in cross examination and proceedings were subsequently discontinued. It was submitted that, as the Respondent had conceded that there was no finding of guilt in the District Court, this “comes close” to conceding that the ground is not made out. The Respondent’s so called “concession” however, is nothing more than a statement of fact.

21. In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], the Appeal Panel also observed:

It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, … the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. (Tribunal emphasis)

22. It was submitted on the Applicant’s behalf that Mercer can be distinguished on the facts as it involved offences relating to the use and storage of firearms which were dismissed on a technicality whereas the charges against the Applicant were withdrawn by the DPP. It is not, as was submitted by the Applicant, that fair to infer that the first alleged victim did not come up to proof after giving evidence.

23. In applying Mercer, I considered the reasons that the charges were withdrawn. The Applicant's counsel submitted that the Applicant had “confronted his accusers and they capitulated”, and that the Applicant "has beaten the police case in court". The evidence of Detective Turner, the officer in charge of the two investigations, however, was to the contrary. The first alleged victim was five months pregnant at the time of the trial, and extremely ill, but had attended, nonetheless, with the support of her parents. She had had to take numerous breaks during her evidence. Despite being part-way through cross-examination, the Deputy Director of Public Prosecutions (DDPP) directed that no further evidence was to proceed due to the danger posed to the alleged victim and her unborn child. In providing his account of the reason the matter was withdrawn, Detective Turner said he had referred to his own notes of the trial and had conferred with the Crown Prosecutor. The Applicant submitted that the explanation for the withdrawal of the charges was “simply incredible” and that I should not rely on Detective Turner’s statement as to what the DDPP was thinking and that the Respondent should provide a statement from the DDPP himself stating his reasons, and that such a statement was likely to be on the DPP file. There is no such obligation on the Respondent. The Applicant’s counsel suggested that a pregnancy, complicated or otherwise, is not a reason to abandon a criminal trial; the proper course would have been to seek an adjournment until after the witness's confinement. There was no evidence whether a re-trial is likely, or indeed, whether it is possible.

22. Detective Turner’s evidence, however, was unchallenged, other than the assertions made by the Applicant’s counsel, and I accept Detective Turner’s account of the reasons the charges were withdrawn.

23. As to the second prosecution, Detective Turner explained in his statement that following the withdrawal and dismissal of the first prosecution the second alleged victim felt she was unable to proceed. As a result, a direction was issued by the DPP not to proceed with the trial in that matter either.

24. The Applicant’s counsel submitted that the first and second alleged victims are known to each other and have had the opportunity to compare versions - the Applicant is a relative of the first alleged victim and a 'family friend' of the second alleged victim. Indeed, the mother of the second alleged victim still works for the Applicant and has provided a reference for him. Although the second alleged victim was aware of the allegations made by the first alleged victim, there is no evidence of any collusion or contamination of the evidence that they provided to Police. Detective Turner wrote in his statement that Police were always aware of the connection and took appropriate action during the investigation to ensure that the evidence was not contaminated. Again, that evidence was unchallenged, other than in submissions.

25. The Applicant submitted that because the second alleged victim was aware of the allegations made by the first alleged victim that is enough to raise the very real prospect of contamination, such that the second alleged victim’s recollection could be modified by hearing the first alleged victim’s story, even subconsciously. The Respondent submitted that there is no evidence of contamination, and I agree that that is the case.

26. I observe that the Applicant was committed for trial, which, on my understanding, means that a magistrate found a prima facie case and that the matter should proceed to trial. Section 62 of the Criminal Procedure Act 1986, as it was at the date of the Applicant’s committal, provided that the magistrate must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence. The test therefore was whether a jury could convict on the evidence: see Wentworth v Rogers (1984) 2 NSWLR 422 at 429 and 440.

27. The Applicant, in his statement did not address the conduct which gave rise to the criminal charges at all, and for the purposes of criminal consideration, neither is he oblige to comment. However, as observed, my task is to consider his conduct on the balance of probabilities. The only evidence I have before me in relation to the alleged child sexual assault allegations is that provided in the Police brief of evidence, notably the detailed complaint of the first alleged victim. It is not necessary for me to determine if the Applicant was, even on the balance of probabilities “guilty” of the charges against him; I am to consider the conduct that gave rise to those charges. I do not need to find the charges proven on the civil standard, only that the conduct complained of was proved to the civil standard. Again, I observe that the only evidence I had before me was the Police brief of evidence; there was no contradictory evidence by the Applicant. I find that, on the balance of probabilities, that the conduct complained of was true.

28. I was less satisfied in relation to the 2^nd alleged assault because there were fewer details about why that matter did not proceed. However, once again, that the only evidence I had before me was the Police brief of evidence; there was no contradictory evidence by the Applicant. On balance, again, I find the conduct complained of was true.

Common Assault

31. The Respondent referred to the Applicant having been found guilty of common assault in the ACT in 2007. The offence was found proved but no conviction was recorded and the Applicant was released on a good behaviour bond for 12 months. No other information was available about the circumstances of the offence except that it occurred at licensed premises.

Traffic Record

32. The Applicant has a history of traffic infringements dating back to April 1982, when he was aged 18, in both NSW and the ACT:

a.   Not comply with conditions of licence on 17 March 2014;

b.   drive with middle range PCA on 4 December 2005, for which he was placed on a 9 month good behaviour bond and fined $200. He was also suspended from driving for three months;

c.   exceed speed limit by more than 15 km/h but not more than 30km/h whilst driving a motor vehicle on 22 September 2005;

d.   drive after licence cancelled on 26 February 1998;

e.   exceed speed limit by not more than 15km/h whilst driving a coach or heavy vehicle on 30 September 1997;

f.   fine default cancellation on 22 July 1997;

g. disobey stop sign in the ACT on 27 May 1991;

h. unlicensed driver in the ACT on 27 May 1991;

i. no seatbelt in the ACT on 31 January 1989;

j. unlicensed driver in the ACT on 30 December 1988;

k. no third party insurance in the ACT on 30 December 1988;

I. drive unregistered motor vehicle in the ACT on 30 December 1988;

m.   drive offside separation line on 25 July 1988;

n.   unlicensed driver on 25 July 1988;

o. unlicensed driver in the ACT on 7 July 1987;

p.   exceed .08 breath test (0.14) on 3 January 1987;

q.   speed 75km/h to 89km/h in 60km/h zone in ACT on 3 January 1987;

r. unlicensed driver in the ACT on 3 January 1987;

s. state false name in the ACT on 3 January 1987;

t.   speed on 22 October 1983;

u.   no third party insurance on 14 April 1982; and

v.   unregistered motor vehicle on 14 April 1982.

33. The Respondent invited particular attention to the offence in 1987 when the Applicant, then aged 23, provided a false name to Police.

34. The Applicant submitted that, in relying on the Applicant’s driving record, the Respondent is “clutching at straws”, and alleged that the Respondent had decided to refuse a licence as “payback for beating the charges” and that this was an improper exercise of administrative power. I have disregarded these assertions as hyperbole, as they are completely unsupported by any evidence.

Genuine Reason for holding a Firearm Licence

35. The Applicant submitted that he has a legitimate need for firearms as both a primary producer and a sporting shooter. However, his application only identifies 'sport/target shooting'. Consistent with the reasoning of SM Montgomery in Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at [99], if granted, the licence would not permit the use of firearms for primary production. Currently, the Applicant does not live on a farm, his only current need is for sports shooting. It was submitted that it was the Applicant's intention to amend his application to include use of firearms for primary production; at the hearing his counsel said that he should be able to amend his application now to include a genuine reason of primary producer. That is not correct; he would need to make a fresh application.

36. Additionally, the Applicant deposed in his affidavit that "it became too difficult to manage the Condoblin property without firearms" and he sold the property at the end of 2018, that is after his firearms licence was suspended. The Respondent submitted that this comment is somewhat inconsistent with the reference that has been provided by the disabled athlete, who states that he joined the Applicant at his Condoblin property and undertook feral animal management on that property. However I observe that the Applicant’s previous (Category ABC) licence included use the genuine reason of primary production. There was nothing to suggest that this activity had occurred after his licence had been suspended. I therefore reject the Respondent’s criticism.

37. It is clear on the application form submitted by the Applicant that he is able to select one or more genuine reasons, and he did not do so. The Applicant no longer has the property and therefore no longer has a need for a licence for the purpose of primary production. Also, he obtained work in the ACT.

Fit and Proper Person test

38. Section 11(3)(a) of the Act states that "a licence must not be issued unless 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".

39. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

40. Toohey and Gaudron JJ said at 380:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (Tribunal’s emphasis)

41. In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that when considering if an Applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace. In the present matter the child sexual assault charges did not involve a firearm.

42. Similarly, the common assault offence did not involve a firearm. The offence was clearly considered by the magistrate to be at the lower end as the Applicant was only placed on a good behaviour bond.

43. The Applicant supplied a number of character references from friends, family and other members of the public, who all, speak highly of him.

44. The Respondent contended that the references do not demonstrate an awareness of the sexual assault charges. Consistent with the Tribunal's reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42], and in circumstances where the referees do not articulate an awareness of the circumstances giving rise to the refusal of the Applicant's firearms licence, the Respondent submitted that these references, should be given little or no weight: per Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].

45. I observe though that two of the referees had provided statements to Police in connection with the second prosecution. Another appears to be related to those persons. I consider that these referees were highly likely to be aware of the charges. Other references are from relatives of the Applicant and I consider that it is more likely than not that they also were aware of the charges that had been brought against the Applicant. The Respondent was also critical of the reference provided by Mr Betts who said the Applicant had informed him that his firearms were “taken from him with no explanation as to why this action was taken". I agree that this statement is clearly incorrect, as the Applicant was advised, both when his firearms licence was suspended and when his application was refused, that it was on the basis of the charges brought against him.

46. A number of references directly related to the Applicant’s role with respect to a disabled athlete who the Applicant trained in Olympic Trap Shooting, and including from the athlete himself. While it is unclear if these referees were aware of the charges against the Applicant, all wrote in very positive terms about the Applicant’s dedication with respect to the training of the athlete. Safety with respect to firearms was repeatedly mentioned.

47. It was submitted on the Applicant’s behalf that this is not a circumstance where a person would be expected to disclose unproven allegations to referees. Counsel for the Applicant drew a distinction between criminal proceedings in which a defendant is found guilty of an offence and it is expected that the referees will acknowledge the offending and explain how it affects their view of the accused. It was submitted that, in circumstances where there is no finding of guilt and the allegation is categorically denied, as in this matter, there was no reason for the Applicant to disclose the charges to his friends and associates, as even unproven allegations of this nature would lead to him being shunned. The difficulty with this contention is that there was a direct correlation between the refusal of the firearms licence (albeit in relation to the public interest test) and the charges, and as difficult as disclosure of the charges may be, it is unfair to the referees to be asked to comment as to the Applicant’s character, in circumstances where the charges were not in fact “beaten”, as the Applicant’s counsel contended.

48. The Applicant’s counsel submitted that the references demonstrate that the Applicant is well regarded in the wider community and particularly in the sporting shooters community.

49. A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41].

50. The Respondent did not consider the Applicant failed the fit and proper person test at the time his recent application for a firearms licence. The explanation for it now being raised was that the Applicant had raised it in his submissions. I do not think this to be a satisfactory explanation, but ultimately nothing turns on this change of position.

51. I have found that the Applicant engaged in conduct which can only be described as abhorrent. However, it did not involve firearms, nor have there been any incidents whatsoever in his capacity as a gun owner, nor in relation to firearms at all. The conduct does not lead me to a view that the Applicant is not a fit and proper person to hold a firearms licence.

52. The Respondent submitted that the offence of common assault raises concerns regarding the Applicant's aggressive behaviour, as well as his ability to control his behaviour and abide by rules that seek to ensure public safety. Counsel for the Applicant noted that the offence did not involve a firearm and Police did not seek to revoke the Applicant’s firearms licence at the time, now some 12 years after the event.

53. There was no suggestion that the assault involved a firearm. It may be that because the incident giving rise to the charge occurred on licensed premises, alcohol was involved, but that is purely speculative. I accept though that the information about this offence may be indicative of some volatility in the Applicant at the time. I observe however that the offence was now 13 years ago, and appears to have been an isolated incident. The information about the offence does not lead me to a view that the Applicant would use a firearm if provoked.

54. As to the Applicant’s traffic history, I accept that the Applicant had a poor traffic history between the years 1982 and 2005. Then after a gap of 9 years, there was a further, offence of “not comply with conditions of licence” in 2014, the details of which are unknown to me. In the 6 years since that time he has had not even a minor charge.

55. As to the offence in 1987 when the Applicant provided a false name to Police, no further information was provided as to the circumstances of the offence. I observe that the offence occurred when the Applicant was aged 23, and the offence is now over 20 years ago. I attach little weight to this information about the Applicant’s conduct.

56. The Applicant submitted, that if the Respondent genuinely felt that the Applicant's traffic record made him a danger to the public, then a recommendation could have made to Roads & Maritime Services that the Applicant's driver licence be cancelled. I consider this submission to have missed the point. It is well established that traffic rules are designed for public safety: see Tannous v Commissioner of Police [2011] NSWADT116, at [32] and [37]. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill noted at [81] that:

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.

57. The Respondent submitted that, given the extensive history of traffic infringements, the Tribunal cannot be satisfied that similar conduct will not be repeated or that the Applicant may similarly disregard aspects of the firearms regulatory scheme. I observe that the most recent of these offences was over 6 years ago. I also observe that, other than a mandatory 3 month suspension in 1987, none resulted in the Applicant losing his licence. As the most recent traffic offence was in 2014, now some 6 years ago, it is unreasonable to suggest that the Applicant’s traffic offences up till that time is indicative of a likelihood that he will continue to offend in that regard. I also observe, as the Applicant pointed out, the driving offences (other than the offence in 2014) were known when the Applicant received his last firearms licence in 2013 and did not prevent a licence being issued at that time. I consider that the Applicant’s past poor driving record is therefore to be afforded little weight. That history does not, as the Respondent suggested, indicate a current ongoing disregard for the law.

Conclusion in relation to fit and proper person test

58. In summary, therefore, I do not accept that the Applicant fails the fit and proper person test.

Public Interest Test

59. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, but it is well established that the Tribunal will have regard to the context in which the term appears: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. 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].

60. The Applicant seeks a firearms licence because clay shooting has been his “only real passion” since he was 13 years old, a total of 43 years, he said. He competed in the sport while at school, and trained with a former world champion who was one of his teachers. As an adult, he has competed in interstate competitions. He trains a disabled athlete who has, under his coaching, became a world champion. He is a current member of the Sporting Shooters Association of Australia and, until his suspension, has been a member of a gun club. I accept that the Applicant has a substantial interest in holding a firearms licence for the genuine reason of ‘sport/target shooting’.

59. Private interests are not the only matters 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 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]. 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] VicRp 6; (1991) 1 VR 63.

60. 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 formulation has been held to also 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 [130]. 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].

61. 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].

62. Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour.

63. Firstly, although the Applicant was charged with several serious offences, none involved a firearm.

64. Secondly, in considering whether it is not in the public interest for the Applicant to hold a licence, considerations of public safety are especially relevant. The Applicant has never been charged with a firearms offence despite holding various licences over 25 years. There was no evidence that his holding a licence has ever created any danger.

65. Thirdly, although the Applicant had a poor traffic history for about 20 years up till 2005, and there was one further offence in 2014, there has been nothing whatever since. I have already observed that that history does not, contrary to the Respondent’s submission, indicate a current ongoing disregard for the law. The traffic laws and regulations and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a firearms licence: Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144 at [97]. I do not consider there is a current disregard for a regulatory scheme.

66. Fourthly, as to the concerns about the Applicant’s genuine reason for seeking a firearms licence, there is no evidence to suggest any subterfuge by the Applicant, or indeed, misunderstanding of his obligations under the Act. It is a question of fact that the Applicant applied for a Category AB licence for the genuine purpose of ‘sport/target shooting’. Any licence that is issued will be for that purpose only. The Applicant may return to the country and submit that he has a genuine reason as a primary producer, however currently, it is clear his application relates solely to ‘sport/target shooting’. There was no evidence whatever that he intends to use a firearm for any other purpose.

Conclusion as to the public interest test

69. The underlying principles of the Act stated in s.3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold the firearms licence for which he has applied.

DECISION

1. The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

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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

Amendments

30 October 2020 - Non publication order made in respect to the Applicant name

30 October 2020 - Applicant name

Decision last updated: 30 October 2020