Croker v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 299

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Croker v Commissioner of Police, NSW Police Force [2023] NSWCATAD 299

Hearing dates:

14, 20 June 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member

Decision:

1. The decision of 22 December 2022 to refuse the applicant a category AB firearms licence is set aside.

2. A Category AB firearms licence is to be issued to the applicant.

Catchwords:

Firearms – licensing – refusal – public interest – confidential material

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

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

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

SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Mr R Croker (Applicant)
Commissioner of Police (Respondent)

Representation:

Mainstone Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2023/00007611

Publication restriction:

Pursuant to s64(1)(b), 64(1)(c) and 64(1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked [NOT FOR PUBLICATION] are not to be released to any person other than the respondent or their representative.

Reasons for decision

1. Mr Croker requires a firearms licence to run his wild game culling service. Following the suspension of his licence due to a domestic incident in 2022, Mr Croker’s subsequent application for a Category AB firearms licence was refused. He has applied to this tribunal for a review of that decision.

2. The Firearms Act 1996 provides for the regulation, control and registration of firearms. The underlying principles of the Firearms Act are to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, to improve public safety and to facilitate a national approach to the control of firearms. (s3 of the Firearms Act 1996)

3. A firearms licence may be refused for a number of reasons, including where the Commissioner of Police considers that the issue of the licence would be contrary to the public interest. Mr Croker’s application for a firearms licence was refused for this reason. (s11(7) of the Firearms Act;.

4. Included in the evidence before me is confidential material provided by the Commissioner of Police. I have considered this confidential material without making it available to either Mr Croker or his legal representatives. This is because the material is relevant to my task of determining the correct and preferable decision in a statutory context where firearm possession and use is a privilege conditional on the overriding need to ensure public safety. (s75 (5) of the Firearms Act 1996).

5. For the reasons that follow, I have decided that the decision by the Commissioner of Police to refuse a licence to Mr Croker should be set aside.

Issues for determination

6. The role of the tribunal is to review the merits of the decision by the Commissioner for Police to refuse a firearms licence to Mr Croker. In this case, I need to determine whether it would be contrary to the public interest for Mr Croker to hold a firearms licence. In undertaking such a review, the following issues arise for consideration:

1. Mr Croker’s history of holding a firearms licence;

2. Mr Croker’s need for a firearms licence;

3. Mr Croker’s criminal history;

4. Mr Croker’s domestic situation, including the incident on 17 May 2022;

5. Mr Croker’s character;

6. The relevance of confidential material held by the Commissioner for Police.

ISSUES

Mr Croker’s history of holding a firearms licence

7. Although Mr Croker was granted a shooters licence in 1996, it was revoked on 30 April 1998 when an Apprehended Violence Order (AVO) was issued against him for the protection of his previous partner. Mr Croker held no firearms licence until 28 February 2012, when his application for a firearms licence was granted. His subsequent application for a firearms licence was granted on 10 June 2017. In granting the licence, the Commissioner of Police had to be satisfied that Mr Croker was a fit and proper person to hold the licence and could be trusted to have possession of firearms without danger to public safety or to the peace. (s11(3) (a) Firearms Act 1996.)

Mr Croker’s criminal history, including domestic incidents and traffic history

8. Between 1996 and 1998 and between 2003 and 2009, Mr Croker was involved in domestic incidents that resulted in one final order and a number of provisional and interim AVOs being made against him.

9. In 1991, he was convicted of receiving stolen property and maliciously damaging property. In 1998, he was fined for being in possession of a prohibited drug. In a written statement, Mr Croker provided details of the circumstances behind these charges, agreeing to his involvement in the earlier events but denying knowledge of the prohibited drug (marijuana) found at his home.

10. In 2009, Mr Croker was convicted of contravening the terms of the AVO made against him in December 2008 for the protection of his ex-wife, who gave evidence in these proceedings. The AVO had been issued following an argument and physical altercation between Mr Croker and his now ex-wife at the time of their separation. Mr Croker denies ever having hit his ex-wife and although he had initially been charged with common assault, the charge was dismissed. Mr Croker later contravened the terms of the AVO by contacting his ex-wife by telephone. In oral evidence given during these proceeding, Mr Croker’s ex-wife confirmed that despite their hostile separation, for the last 4 years, she and Mr Croker have had a ‘great friendship.’

11. On 12 November 2022 Mr Croker was issued with an infringement notice for refusing to leave a hotel when requested to do so by police officers, given his level of intoxication. The COPS events record notes that ‘Police requested [him] to leave on multiple occasions with [him] still refusing…Police obtained [his] identification before he eventually walked away from the licensed premises.’

12. Video footage of the incident shows Mr Croker arguing with police when asked to leave the hotel. Despite being argumentative, he was not aggressive, appears coherent, was able to walk without assistance and left the hotel in the company of a man and a woman who were clearly known to him.

13. Since 2017, when Mr Croker was granted a firearms licence, his criminal record has been clear, apart from the infringement notice considered above. In light of the video coverage viewed and the fact that Mr Croker did, after some delay, leave the hotel in accordance with police directions, I give little weight to this incident in determining whether it would be contrary to the public interest for Mr Croker to be granted a firearms licence.

14. Since his driver’s licence was first issued in 1991, Mr Croker has received 15 traffic infringements, most recently on one occasion in 2020 and another occasion in 2021 for using a mobile telephone when not permitted. Between 1995 and 2009, he was fined on five occasions for failing to wear a seat belt and in 2017, he was fined for driving with an unrestrained passenger under the age of 16 years. A charge of driving whilst suspended was dismissed.

15. As a rural resident who has worked on a number of properties as a labour hand and in culling wild game, I accept that Mr Croker frequently drives long distances. In light on his long period as a driver and the fact that over the last ten years of driving he has received only four infringements, I give little weight to his traffic record in considering whether it would be contrary to the public interest for Mr Croker to be granted a firearms licence.

16. There is no evidence before me that Mr Croker has ever been charged or convicted of any firearms-related offences.

Why does Mr Croker wish to hold a firearms licence?

17. In the four years prior to the suspension of his firearms licence, Mr Croker established a business providing professional culling services and managing chiller boxes on his property to store animal carcasses. To cull wild game, including kangaroos and wild boar, Mr Croker requires a firearms licence.

18. In his written statement, Mr Croker explained how being without a firearms licence has affected him:

When I was shooting before I had my rifles seized, I was making anywhere between $500 per night and up to $1700 per night but it’s not just the money I have lost since getting my licence and guns removed. I have lost properties to shoot on that took me years to gain. I have lost the chiller boxes from my residence because I wasn’t providing the meat they needed and I continually have to sell items off the property just to pay all the bills due to not having work. The current price for kangaroo meat is $1.50 per kg plus I got 10c per kg for commission which means if I shot 1 tonne of kangaroo meat per night that was $1600 for the night. Most nights I shoot between 500-1000kg per night. I need a firearms licence to return to this work for my income and to support my family.

19. In a reference provided to the Tribunal, Mr Mitchell Cooper confirms that Mr Croker has been supplying his meat processing company with wild game since 2017.

20. On the evidence before me, I accept that Mr Croker requires a firearms licence to continue his work as a professional shooter of kangaroos and wild boar and as a chiller box operator to store the animal carcasses. I accept that Mr Croker has undertaken TAFE courses to obtain his harvester and safe food licences for this work.

21. Prior to establishing this business, I accept that Mr Croker worked as a farm hand, as a labourer and as an abattoir worker, during which time he was injured and placed on workers compensation and other benefits.

22. In her oral evidence, Mr Croker’s ex-wife confirmed that about four years ago, she first saw the sign and notice on the gate of Mr Croker’s property advertising his culling business. She told the Tribunal that:

Ron lives for [his business]. He has the biggest heart; he’s always wanted to be his own business; this is one way to achieve it. With friends, he said he can do it…always loved pig shooting..

Mr Croker’s domestic situation

23. Mr Croker’s six year relationship with his ex-wife ended in 2003, when an interim AVO was made against him for her protection.

24. In a written statement prepared for these proceedings, Mr Croker’s ex-wife declared that:

‘[although] our marriage ended with an AVO I would like to acknowledge that only during this time during our separation did I ever felt threatened, as all marriages, we had our fair share of arguments but at no time was Ronnie abusive.’

25. In oral evidence in these proceedings, Mr Croker’s ex-wife confirmed that she hadn’t feel threatened during their relationship although she had felt frightened of him during the incident in 2003 which led to an interim apprehended violence order being made for her protection. She agreed that their separation had been ‘hostile’ but told the tribunal that she and Mr Croker now have a great friendship now and are in weekly contact. She told the tribunal that she and Mr Croker had each grown since their separation. I accept the evidence of Ms Selten and Mr Croker that their relationship is amicable.

26. In oral evidence, Mr Croker told the Tribunal that he and his partner began their relationship thirteen years ago. They have been living separately for 12 months but are ‘hopefully trying to get back into a relationship.’ His partner has the primary care of their foster son while Mr Croker lives with his 21-year-old daughter.

27. There is no dispute that Mr Croker’s adult son, Mathew, has a criminal record with a 2019 conviction for assaulting an officer in the execution of duty as well as convictions in 2013 for damaging property and for assault occasioning actual bodily harm for which he received an eighteen-month-suspended sentence. I also accept that Mr Croker’s son, Codie, was convicted of stalking/ intimidation in 2015 and 2016.

28. Mr Lincoln Wade shares a mother with Mr Croker’s adult sons. Mr Wade also has a criminal record that, since 2017, includes two convictions for stalk/intimidation and three convictions for common assault. .

29. I accept that Mr Wade and Mr Croker’s adult sons do not live with Mr Croker. On the evidence before me, including Mr Croker’s oral evidence in this proceedings and that fact that his association with his sons and Mr Wade did not preclude the grant of a firearms licence to Mr Croker in 2017, I am satisfied that his relationship with his sons and Mr Wade would not pose a risk to public safety were Mr Croker to again hold a firearms licence.

30. COPS Event references held by police record the following alleged incidents involving Mr Croker:

1. an argument with his ex-wife in 2008 in relation to the custody of their daughter, resulting in an interim AVO being made against him and a later conviction for failing to abide by the terms of the AVO by texting his ex-wife.

2. a COPS event reference recording a dispute between Mr Croker and his ex-wife in 2011 resulting in an interim AVO being made against Mr Croker.

3. a COPS event sheet referencing an incident in 2021 between Mr Croker and his partner who have a foster child together. In this sheet, Mr Croker is recorded as being ‘employed full-time culling feral animals’ and as having stated his concerns that his partner ‘may be considering a future report of domestic violence to police knowing this would result in the confiscation of his firearms and therefore loss of his employment.’ The record notes that this is ‘obviously of concern…hence his attendance at the police station on this date.’ According to the police record, ‘at this time, there is nothing to indicate that a domestic violence situation exists here. At this state no police action is required.’

The domestic incident on 17 May 2022

31. On 17 May 2022, Mr Croker’s partner contacted police to advise that Mr Croker was verbally abusing her and confirming that there were children and firearms at the house. There was no allegation of physical violence. When the police attended the couple’s house, Mr Croker stated that his partner ‘has threatened on numerous occasions to have his firearms confiscated so he could not work.’

32. The police suspended Mr Croker’s licence and seized his nine firearms for a period of 28 days. Mr Croker’s licence expired whilst it was suspended and Mr Croker’s subsequent application for a licence was refused, a decision that was affirmed on internal review and is now before this tribunal.

33. On 15 June 2022, Mr Croker’s partner wrote to the Firearms Registry in support of his application for a firearms licence, stating that:

in no way was [he] violent, threatening me or was I in fear for my safety…I truly wasn’t aware that they would have to seize his firearms and take his licence as I was in no need of an AVO or a DVO. [He] has never been violent towards myself..threatened me or made me feel unsafe or have any concerns for my safety. Quite the opposite actually, he is a very caring, kind-hearted and honest husband and myself and our children are lucky to have him in our lives, please don’t punish him for my mistake of calling the police out of spite.

34. I accept the evidence of Mr Croker’s partner that the incident on 17 May 2022 involved no violence or physical aggression. There is no evidence that an AVO was issued by police on this occasion.

35. In light of these findings, I am satisfied that there is nothing before me to indicate that, subsequent to the grant of his firearms licence in 2017, Mr Croker’s domestic situation has been such as to pose a risk to the public were he once again to hold a firearms licence.

Mr Croker’s character

36. A number of character references have been provided to the tribunal in support of Mr Croker’s application. Peter Zell, who has known Mr Croker all his life, describes him as a good and reliable friend, an impressive parent, a responsible, hard-working and trustworthy farm manager.

37. Mr Croker’s ex-wife describes him as a hard-working man and a wonderful father. As set out above, his partner has described him as ‘very caring, kind hearted and honest.’

38. Mr Paul McManus, a former superintendent of Wellington Council, provided a statement in support of Mr Croker, describing him as a responsible and trustworthy person:

‘I have known Ronnie Croker from our early school days. Although we went to school together, we never became good friends until our mid-twenties. A common interest in hunting and the outdoors found us spending a lot of our weekends together, travelling all over the eastern states of Australia, hunting and camping.

Confidential information received from the Commissioner of Police

39. On 10 May 2023, orders were made by this Tribunal that:

1. certain material filed by the Commissioner of Police be considered by the tribunal on a confidential basis, and not be disclosed to Mr Croker, his legal representatives or members of the public;

2. a confidential hearing be heard, in the absence of Mr Croker, his legal representatives and members of the public to discuss this confidential material . (s49(2) Civil and Administrative Tribunal Act 2013 (NSW)

40. These orders were made on the basis that, were the confidential material to be adduced into evidence and disclosed, the disclosure has the potential to prejudice the ability of the police to monitor and investigate criminal activity, identify confidential sources of information and undermine the confidence of the public in providing information to the police on a confidential basis. Such disclosure would be, therefore, inconsistent with the public interest.

41. It is not unusual that information is given to the police anonymously. Making a finding of fact on the basis of information from an anonymous source, for example, may, in some circumstances, involve a process that is tainted with illogical or irrational reasoning. Where it is proposed to admit evidence which a party does not have access to, scrutiny of the probative value of that evidence on the one hand, and its prejudicial effect on the other, is all the more important. (SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1)

42. A confidential hearing to consider confidential information received by the Commissioner of Police was held in the absence of Mr Croker and his legal representatives on 20 June 2023 . (75(5) of the Firearms Act)

Information received by the police prior to 2017

43. [NOT FOR PUBLICATION]

Information received by police after 2017

44. [NOT FOR PUBLICATION]

Does the evidence before me support a finding that it would not be in the public interest for Mr Croker to hold a firearms licence?

45. In considering whether an applicant should hold a firearms licence, the tribunal must consider whether, based on all the evidence, it would have confidence that an applicant would not pose a risk to public safety if given access to firearms. 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. Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.

46. A balanced view of the risks should be adopted, 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 and the likelihood of risk to the safety of the public must be assessed by reference to prior conduct. Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 97.

47. As considered above, Mr Croker was last convicted of a criminal offence in 2009 when he contravened the provisions of an AVO made against him by texting his ex-wife.

45. Although he received an infringement notice in November 2022 for (initially) failing to leave a hotel when intoxicated, for the reasons set out above, I give little weight to it as an indication that Mr Croker would pose a risk to public safety if granted another firearms licence.

46. As set out above, I accept that during an argument on 17 May 2022, Mr Croker’s partner called police for assistance. On the evidence before me, I am satisfied that no AVO was issued by police and I accept the written evidence of his partner that Mr Croker had never been violent or threatening towards her. In light of these circumstances, I give little weight to the incident as an indication that Mr Croker would risk the public’s safety were he, once again, to be the holder of a firearms licence.

47. [NOT FOR PUBLICATION]

48. [NOT FOR PUBLICATION]

49. [NOT FOR PUBLICATION]

50. [NOT FOR PUBLICATION]

51. [NOT FOR PUBLICATION]

52. [NOT FOR PUBLICATION]

53. Since Mr Croker was granted his firearms licence in 2017, his criminal history has been clear, apart from the infringement notice issued to him in 2022, which I have considered above.

54. [NOT FOR PUBLICATION]

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. For these reasons and on the evidence before me, I cannot be satisfied that Mr Croker would in the future pose a risk to the safety of the public or that it would be contrary to the public interest for him to be the holder of a firearms licence.

Conclusion

64. As I cannot be satisfied that Mr Croker would in the future pose a risk to the safety of the public or that it would be contrary to the public interest for him to hold a firearms licence, the decision of the Commissioner of Police to refuse to issue a firearms licence to Mr Croker must be set aside.

Decision

65. 1. The decision of 22 December 2022 by the Commissioner of Police to refuse the applicant a firearms licence is set aside.

66. 2. A Category AB firearms licence is to be issued to the applicant.

**********

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 November 2023 - 1. The decision of 22 December 2022 to refuse the applicant a firearms licence is set aside.

2. A Category AB firearms licence is to be issued to the applicant.

15 January 2024 - 1. The decision of 22 December 2022 to refuse the applicant a category AB firearms licence is set aside.

2. A Category AB firearms licence is to be issued to the applicant

Decision last updated: 15 January 2024