Davies v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 210

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Davies v Commissioner of Police, NSW Police Force [2024] NSWCATAD 210

Hearing dates:

3 July 2024

Date of orders:

29 July 2024

Decision date:

29 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1. The decision under review is set aside.

2. The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

Catchwords:

Administrative Law - licensing - firearms - revocation of licence - fit and proper person - public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Baker v Commissioner of Police, NSW Police Force [2013] NSWADT 190

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

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

Coen-Graham v Commissioner of Police, NSW Police Force [2024] NSWCATAD 52

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

Davos v Commissioner of Police [2013] NSWADT 7

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

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

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

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Jarrod Davies (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
J Sutton Associates (Applicant)
Holding Redlich (Respondent)

File Number(s):

2024/00022796

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Jarrod Mark Davies (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Respondent”) under the Firearms Act 1996 (“the Act”). The Respondent’s decision was to revoke the Applicant’s category ABH firearms licence and large calibre pistol permit.

Background

2. The Applicant was issued with a category ABH licence in 2014 and the licence was renewed in 2017 and 2022. It was suspended in February 2023 and revoked in November 2023. The Applicant was issued with a large calibre pistol permit in May 2012. The permit was renewed in 2017 and 2022. The revocations of the Applicant's licence and permit were both affirmed on internal review.

3. The Applicant has applied to the Tribunal for external review of the revocations.

4. The Respondent has provided an outline of interactions between the Applicant and other individuals that lead to the revocations. Records of the interactions are recorded in a bundle of documents (“the section 58 documents”) provided pursuant to section 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”). The incidents referred to include a number of incidents involving disputes between the Applicant and his stepmother (“the stepmother”). The disputes related to the Applicant's father’s will and arose in circumstances where the Applicant's father was gravely ill:

• 31 January 2023 - report of violence by the stepmother against the Applicant's father.

• 31 January 2023, the stepmother punched the Applicant's father in the face while he was in a hospital bed recovering after cancer surgery. She threatened him and tried to make him sign a new will against his wishes.

• 3 February 2023 – the Applicant attempt to enter his father’s property (“the Property”) to collect some of items for his father. Police attended with the Applicant to prevent a breach of the peace. They were not able to access the Property as the gates were double-padlocked.

• 9 February 2023, Police received a report from the Applicant requesting an AVO for the protection of his father against the stepmother.

• An AVO was issued against the stepmother to protect the Applicant's father.

• 23 February 2023 - the Applicant again attempted to enter the Property (“the 23 February incident”). The stepmother alleged that she was home alone at the Property when she heard the Applicant's voice. She reported that she couldn't stop shaking and felt scared.

• The stepmother called her sister who arrived at the Property shortly afterwards and had an interaction with the Applicant and his wife.

• The stepmother’s sister ultimately provided a statement in support of an AVO. In the statement she described the interaction with the Applicant and his wife.

• The stepmother reported to police alleged that she feared for her safety and believed that, without intervention, the Applicant would harm her physically and his behaviour will escalate.

• 24 February 2023 - the stepmother attended Sutherland Police Station and provided a statement in regard to the 23 February incident.

• In her statement, the stepmother stated that the Applicant was angry about how much he was going to be given in his father’s will and that he has previously been aggressive towards her. She stated that the incident made her feel terrified for her safety. She stated that she felt that the Applicant and his wife might attempt to hurt her and that she was frightened that the Applicant may get someone to hurt her when she was home alone and even possibly killing her.

• Police applied for an interim AVO to protect the stepmother and to prevent the Applicant from going to the Property.

• 25 February 2023 at 12.00 am - police attended the Applicant's residence to question him about the 23 February incident. The Applicant stated that he and his wife attended the Property to collect some belongings for his father. He presented a signed letter from his father that gave him that permission. Police recorded that the Applicant became argumentative and unreasonable.

• 25 February 2023 at 11.00 am - the Applicant and his wife attended Sutherland Police Station to provide further information regarding the 23 February incident. They said they that they attended the Property with a locksmith to obtain some of the Applicant's father's belongings as he was in hospital. As they could not access the gate to the house, the Applicant used bolt cutters to gain access. They denied turning off the power to the house.

• 25 February 2023 at 10.30 pm - the stepmother attended Sutherland Police Station to report that she thought that the Applicant had returned to the Property. She also said that she thought the permission letter that the Applicant had provided to Police was fraudulent.

• 27 February 2023 - an interim AVO (“the AVO”) was issued against the Applicant for the protection of the stepmother. The AVO was to remain in place until 18 September 2023.

• 27 February 2023 - police initial attempt’s to serve the AVO on the Applicant were unsuccessful. The Applicant’s wife subsequently attended Sutherland Police Station to provide police with solicitor details and firearm dealer details. All correspondence to be done through solicitor.

• 28 February 2023 at 10 am - the Applicant and his wife attended Sutherland Police Station. The Applicant was served with the AVO and with a firearms suspension notice. The Applicant denied having possession of an unregistered firearm.

• 6 April 2023 - solicitors acting for the Applicant and his wife wrote to the Commander of the Sutherland PAC withdrawing the implied licence to all members of the NSW Police Force from entering their property. The letter further requested that all communication from NSW Police Force be directed to their solicitor.

• 11 April 2023 - Police attended the Applicant's residence to conduct a welfare check on the Applicant’s father. Police recorded that the Applicant's wife acted with hostility towards the police. Police also recorded that a large sign installed in the front yard of the Applicant's property warning against entry to the property without a warrant or invitation.

• During the interaction with police, the Applicant's wife alleged that they had been harassed by police and indicated that she no longer trusts any police officers.

• 5 May 2023 - Police recorded that the Applicant and his wife perceive that they are being threatened and harassed by members of the NSW Police Force on an on-going basis. They also believe that they are the subject of surveillance by the NSW Police Force. They have taken actions to protect themselves from the NSW Police Force.

• 18 September 2023 - the AVO was withdrawn and dismissed in the Local Court at Sutherland.

5. The Respondent’s internal review of the revocation decision concluded:

After conducting a holistic review of the information before me, I opine that you are no longer a fit and proper person to hold a firearms licence or permit, nor do I consider it to be in the public interest. Accordingly, I am satisfied that the revocation of your firearms licence and large calibre pistol permit are the correct and preferrable decisions.

Issues

6. The Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant’s firearms licence and permit.

7. This determination requires consideration of whether the Applicant is a fit and proper person to hold a firearms licence and permit and whether it would be contrary to the public interest for him to do so.

Legislation

The role of the Tribunal

8. Section 9 of 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 revoke a firearms licence and permit.

9. Section 63 of the ADR Act provides that in determining an 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.

10. 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.

11. 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.

12. 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].”

13. 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.

14. 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].

15. 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.

16. 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].

17. Section 11(3)(a) of the Act states that a firearms license 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".

18. Section 11(7) qualifies the above in the following terms:

"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".

19. Section 24 of the Act provides:

24 Revocation of licence

...

(2) A licence may be revoked—

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

…

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

…

(d) for any other reason prescribed by the regulations.

20. Clause 20 of the Firearms Regulation 2017 (“the Regulation”) provides that the Commissioner ‘may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.

21. Similar provisions apply to the revocation of a permit. Section 30(4)(b) of the Act prescribes that a permit may be revoked for such reasons as may be prescribed by the regulations. Clause 21(1)(a) of the Regulation, prescribes that a permit may be revoked if the Commissioner is satisfied that it is not in the public interest for the person to whom the permit is issued to continue to hold it.

The public interest

22. 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.

23. 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.”

24. 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.”

25. Section 3 of the Act emphasises that firearm 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. 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.”

26. 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].

27. 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 (“Martin”) at paragraphs [64] – [66].

28. 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].

29. As noted, the Respondent contends that the Applicant is no longer a fit and proper person to hold a firearms licence and that it is not in the public interest for him to continue to hold the licence.

Fit and proper person

30. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

31. The issue of an applicant’s fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

32. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

33. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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.

34. They went on to say at 388:

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.

35. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

36. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

37. The Respondent contends that in light of the Applicant's recent conduct he is not a fit and proper person to have possession of firearms.

Material before the Tribunal.

38. The Respondent relies on a bundle of documents provided pursuant to section 58 of the ADR Act. The bundle includes records related to the various events referred to above. Those records are maintained in the Respondent’s electronic database (“COPS”). In addition, the material includes copies of statements that were apparently prepared for the purpose of prosecution of the AVO.

39. The Respondent's solicitors also provided written submissions.

40. As has been noted, the AVO was withdrawn. The Respondent did not produce any witness statements that were prepared for the purposes of this matter and did not provide any witnesses.

41. The Applicant relies on his own evidence. He provided a statement in which he contradicted much of the evidence that is contained in the statements prepared for the purpose of prosecution of the AVO. He attended the hearing and was available but not required for cross-examination.

42. The Applicant 's solicitors also provided written submissions.

The Respondent’s Case

43. The Respondent contends that there are number of considerations that are relevant to the question of whether the Applicant should be permitted to hold a firearms licence. As noted above, the Respondent has provided material in relation to the 23 February incident and also points to the Applicant’s conduct since that incident.

The 23 February incident

44. As has been noted, the Applicant was the subject of the application for an AVO that arose from the 23 February incident. The Respondent doesn’t dispute that the AVO was withdrawn and does not dispute that the individuals who provided witness statements in relation to the AVO proceedings are not available. Nevertheless, the Respondent submits that some weight must be given to the AVO material.

45. The Respondent accepts that there are the inconsistencies between the versions of events but submits that Applicant tends to exaggerate or misinterpret events to align with his preconceived views towards police. The Respondent contends that the Applicant has made a number of assertions which are unsupported by or contradicted by the evidence.

Conduct since the 23 February incident.

46. The Respondent contends that it is an Applicant's conduct since the AVO process was commenced is the immediate cause for concern in relation to the Applicant’s fitness and propriety and the public interest.

47. As noted above, in April 2023 the Applicant’s solicitor wrote to the Respondent’s Sutherland Shire PAC Area Commander advising that the Applicant and his wife were restricting police access to their property. The letter stated:

I am instructed to inform you that the Clients have withdrawn any implied licence that existed under the common law to enter the Property, to all members of the NSW Police Force and their agent/s. As such, if any member of the NSW Police Force or their agent/s enters upon the Property without a lawful purpose and without the express invitation of the Clients they will be committing the tort of trespass and may be sued in trespass.

For abundant clarity be aware that any entry upon the Property by a member of the NSW Police Force or their agent/s, without warrant is, from this date forward, a trespass. Entry by any member of the NSW Police Force or their agent/s for the purpose of conducting an "AVO compliance check" is a trespass. I refer you to the recent NSW Supreme Court decision of Romani v State of New South Wales [2023] NSWSC 49 that states the current law regarding the common law implied licence to enter property.

Additionally, the Clients no longer wish to be contacted directly by any member of the NSW Police Force or their agent/s. Any and all communication from the NSW Police Force, or their agent/s, is to be directed to me via email until further notice.

The Clients reserve the right to reinstate the implied licence under the common law to enter the Property at any time and without further notice to the NSW Police Force or their agent/s.

48. As also noted above, on 11 April 2023, police attended the Applicant's residence to conduct a welfare check on his father. The Respondent’s records indicate that the Applicant's wife was uncooperative and acted with hostility towards the police officers who attended. The Respondent’s records also noted that a large sign had been installed in the front yard of the Applicant's property. The sign reads:

ATTENTION

NSW POLICE FORCE INCLUDING: SUTHERLAND POLICE STATION LOCAL AREA COMMAND & UNDERCOVER POLICE OFFICER SC ANDREW PATTERSON

PRIVATE PROPERTY
NO TRESPASSING
DO NOT ENTER

Warning to all persons without a warrant or admittance by invitation to enter the property of …

PENALTIES APPLY

49. The Respondent’s records indicate that the Applicant's wife had advised police that the sign had been erected in response to ongoing harassment by police. The Applicant's wife had also advised that she and the Applicant no longer trust any police officers and that police would not be admitted to the property without a warrant.

50. The Respondent’s record created on 5 May 2023 further records observations of police that the Applicant and his wife perceive that they are being threatened and harassed by members of the NSW Police Force on an on-going basis and that they believe that they are the subject of police surveillance. The Respondent’s record also notes that the Applicant and his wife have taken numerous actions to protect themselves from police.

51. The Respondent submitted that the allegations of police harassment are unsubstantiated. Further, it contends that the Applicant's conduct in this case goes far beyond a concern or anxiety. It demonstrates feelings or paranoia and persecution, as well as hostility towards police.

52. The Respondent further submitted that even if there was some justification for the Applicant's concern or anxiety towards police, the conduct of the Applicant and his wife towards police is inconsistent with the objects of the Act. The Act requires strict compliance of licence holders.

53. The Respondent referred to the views that I expressed in Davos v Commissioner of Police [2013] NSWADT 7 at paragraph [117] where I sated:

In my view, it is essential that licensees comply with the legislative requirements. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences. ...

54. The Respondent submitted that the Applicant's distrust of police raises serious concerns about his ability or willingness to comply with the firearms regulatory regime. This regime depends to a significant degree on the candour and cooperation of licence-holders with police.

55. With respect to the signage, the Respondent referred to views that I expressed in Baker v Commissioner of Police, NSW Police Force [2013] NSWADT 190 (“Baker”). The Respondent submitted that the facts of this matter are similar to those in Baker in that the applicant in Baker had installed similar signs on her property, which warned that entrance was by invitation only and that trespass damages would apply. She also sent a letter to the NSW Minister for Police intended to withdraw right of entry to her property. I stated at paragraph [61]:

Of greater concern, in my view, is the Applicant's general attitude towards police having access to the property. In her evidence she referred to the restrictions that she and Mr Baker had placed on access to the property. While Mr Baker wrote the Notice Letter dated 18 July 2011 to the Minister for Police, it is clear from her evidence that she regarded this as a joint notice. She referred to it as "our "NOTICE OF WITHDRAWAL OF ENTRY" Notice Letter". She also referred to the signage as "our sign". This suggests that she adopted the views expressed as her own.

56. I further stated at paragraphs [66] - [69]:

1. I accept the Respondent's submission that under the Act, and under standard licence conditions, police may make arrangements with a licence holder to attend a licence holder's property to inspect compliance with safe keeping requirements. It seems that the Applicant and Mr Baker hold the belief that they may, at any time for any reason, refuse entry to police officers to their property. As such, there is an appreciable risk that officers will not be allowed to enter their property for compliance checks and that would frustrate the objects of the Act and standard licence conditions.

2. It is apparent from her evidence that the Applicant does not regard herself as subject to the provisions of the Act. As she was not available to answer questions, the issue of whether she and/or Mr Baker would refuse to allow police access to the property for an inspection to occur for legitimate firearm safety purposes could not be tested. In the circumstances it appears that there is a real risk that such access would be refused.

3. There is an appreciable and real risk that the Applicant's beliefs are inconsistent with the objects of the Act and the conditions of her licence. That being the case, it is my view that it is contrary to the public interest that the Applicant holds a firearm licence.

4. Parliament did not leave the extent of compliance with the Act to the discretion of licence holders. I have serious concerns about the Applicant's appreciation of the importance of strict observance of her obligations as a firearms licensee.

   57. The Respondent submitted that the firearms regulatory regime relies upon licensees having some level of cooperation with police. For example, section 19(2)(c) of the Act states:

(c)   the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee’s facilities in respect of the storage and safe keeping of the firearms in the licensee’s possession,

58. In the absence of such agreement, police cannot enter a property to conduct safe storage inspections and perform other compliance checks unless they believe that there is an imminent risk to safety and/or offending has occurred. The Respondent submitted that as the Applicant and his wife have made clear that they will not allow police to enter their property without a warrant, the Tribunal cannot have any confidence that the Applicant will agree to safe storage checks if his firearms licence was returned to him.

59. A licensee’s attitude towards police is a relevant consideration: see Martin at paragraphs [64] – [66].

60. The Respondent also submitted that it is concerning that it took three attempts by police to serve the interim AVO before the Applicant decided to attend the police station for service. A similar stance was taken to the welfare check attempted on 11 April. The Respondent has concerns that the Applicant would be unwilling to allow police access to the property for legitimate safety purposes.

61. The Respondent noted that the underlying principles stated 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. Having regard to the Applicant's attitudes to police and in the circumstances where the dispute with the stepmother does not appear to be resolved, the Respondent submitted that the Tribunal cannot be satisfied that there would be virtually no risk to public safety if the Applicant has access to firearms. Accordingly, it is not in the public interest for the Applicant to hold a firearms licence.

The Applicant's case.

62. As noted, the Applicant relies on his own evidence. He appeared at the hearing and was available for cross-examination. It is not in dispute that the Applicant has no convictions, and he has never been charged with a criminal offence. He has no charges, fines or breaches for improper handling or storage of firearms. He has never been the subject of adverse action in respect of his licence other than as a result of the withdrawn AVO. Further, his traffic record reveals only two traffic offences in the last 25 years.

63. His case is essentially that the Respondent's decision is entirely without foundation, and that it is not justified by the material upon which the decision is based.

64. The Applicant has provided a statement in which he has disputed much of the material filed in support of the AVO. He was not required for cross-examination and therefore his evidence is not challenged.

65. With respect to the events after 23 February incident, the Applicant submits that at its highest, the stepmother has stated that she was scared. The Applicant accepts that if she was at the Property, she may have been distressed. However, to warrant an AVO, her fears must have been reasonable, and the Applicant’s conduct must have warranted an imposition of an AVO.

66. With respect to the 23 February incident the Applicant’s evidence is:

• the stepmother was at the Property in breach of an AVO that forbade her attendance at the Property;

• he had no reason to believe the stepmother would be at the property;

• he had sought assistance from Police to gain access to the Property;

• he had written authority from his father to attend the Property, and had a lawful purpose in doing so; and

• he left the Property once he was told that police were going to be called.

67. As noted, the AVO was withdrawn. The Applicant contends that the AVO was entirely without any merit and that the February 2023 incident is not relevant to the issue of the Applicant's suitability to hold a firearms licence and the imposition of the AVO should be given little weight.

Events after 23 February 2023

68. With respect to the events after 23 February incident, the Applicant submits that the events can be summarised as:

• On 25 February 2023, Police attend the Applicant's property after midnight, waking up the Applicant and his wife. They had been at home, somewhat inebriated, and asleep. The Applicant and his wife were upset and the Respondent has not explained why attendance at that time was necessary.

• Later that same day, the Applicant and his wife attended the Police Station to attempt to make a complaint as to their treatment. They were treated dismissively.

• The Applicant surrendered his firearms without incident.

69. In response to the Respondent’s contention that the conduct of the Applicant and his wife demonstrates paranoia, the Applicant submitted that:

• the Respondent's officers took out and then pursued an entirely meritless AVO against the Applicant.

• the beneficiary of the AVO is closely related to a serving NSW Police officer, and

• the Applicant and his wife have been treated with profound discourtesy by NSW Police.

70. The Applicant submitted that in these circumstances, some suspicion or even hostility is understandable. It is further submitted that the Applicant and his wife's concern as to the probity with which they are being dealt are well founded. They have provided reasons for their views. They have a right to be upset. Asserting their rights does not mean that the Applicant is not a fit and proper person to hold a firearms licence.

71. Further, it is submitted that even if the Applicant and his wife have overreacted, such concern or even anxiety is not relevant to an assessment as to whether the Applicant is a fit and proper person to hold a firearms licence.

72. The Applicant’s position is that he is not a Sovereign Citizen, and he has a basis for his views. He is dissatisfied with how he and his father have been treated. He has asserted his common law rights to restrict access to his property. He does not accept that his obligations under the Act would not be met. It is submitted that this view is supported by the fact that when his licence was suspended, he complied fully.

73. The Applicant submits that the circumstances in Baker are completely different to those in this matter. In this matter, the Applicant has been upset and frustrated with the manner in which he has been treated. This is to be contrasted with the circumstances in Baker where the parties were divorced from reality. There is a stark contrast between this matter and the circumstances in each of the matters to which the Respondent has referred. In this matter, the evidence shows that the Applicant has complied with his obligations.

74. In this matter, it is submitted, there is no reason to suggest that the Applicant is unable to comply with the Act. Further, there are no ongoing issues with the stepmother.

75. In the circumstances, it is submitted that the correct and preferable decision is to set aside the decision under review.

Discussion

76. In this matter, there are inconsistencies between the versions of events with respect to the 23 February incident. As noted, it is not in dispute that the AVO was withdrawn. The individuals who provided witness statements in relation to the AVO proceedings are not available. The Applicant stands by his version of events and was not cross-examined. In the circumstances, I accept the Applicant’s evidence as unchallenged.

77. As noted above, the Tribunal is required to base its findings of fact on logically probative material and not on mere suspicion or speculation. A party who asserts a fact has a responsibility to prove that fact.

78. On the basis of the available evidence, and the fact that neither the Applicant nor the Tribunal has had an opportunity to question or assess any of the individuals who provided witness statements in relation to the AVO proceedings, it is my view that for the purposes of these proceedings no weight should be given to either the AVO or the circumstances of the 23 February incident.

79. However, of concern to me is the wording of the letter sent to the Respondent’s Sutherland Shire PAC Area Commander in April 2023 advising that the Applicant and his wife were restricting police access to their property, and content of the signage installed in the front yard of the Applicant's property.

80. The Applicant’s solicitor has submitted that these should not been interpreted as an indication that the Applicant will not comply with his obligations as a licensee should he be permitted to hold a firearms licence. Even if this submission is accepted, it is not apparent from the wording of the letter, or the signage and the Applicant’s evidence does not address the issue.

81. The views that I expressed in Baker that I have set out above remain relevant.

82. More recently I dealt with a similar signage issue in the matter of Coen-Graham v Commissioner of Police, NSW Police Force [2024] NSWCATAD 52 (“Coen-Graham”).

83. In Coen-Graham the applicants had erected no-trespassing signage on their property and the signage purported to restrict police access to the property. There was no suggestion that there had ever been any breaches of the Act in relation to the use or storage of his firearms. However, I formed the view that the signage demonstrate an incorrect understanding of the Act and that this deficiency had not been addressed adequately.

84. I have formed a similar view in the present matter. I note that the Applicant’s solicitor has asserted that there was no intention to restrict access by police to carry out inspections and to ensure compliance with the Act. However, concerns remain in regard to the Applicant’s understanding of the obligations of a licensee because of the lack of evidence from the Applicant in regard to the intention of the signage and the April 2023 letter to the Respondent’s Area Commander and the wording of the signage and the letter.

85. In my view, there remains a risk to the public if licensees do not understand their obligations under the Act and the need to comply with other aspects of the firearms legislation. The Applicant will need to address this issue before he should be permitted to again have access to firearms.

86. In my view, the Applicant would need to take steps to remove any basis for these concerns before I would be comfortable that there is virtually no risk to the public if he is to be reissued with a firearms licence. This could be achieved by completing a course in relation to a licensee’s obligations in regard to compliance with the Act. The Applicant should be given the opportunity to take that step.

87. With the exception of the concern that I have expressed in relation to the signage and the April 2023 letter, I do not consider that there are any other issues of fitness and propriety or the public interest that would prevent the reissuing of a firearms licence to the Applicant.

88. In the circumstances, it is my view that the decision under review should be set aside, and the matter should be remitted for redetermination by the Respondent, taking into account the views that I have expressed above.

89. If the Applicant completes a course in relation to his obligations under the Act successfully, I recommend that the category ABH firearms licence and large calibre pistol permit be reinstated.

Order

1. The decision under review is set aside.

2. The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

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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: 29 July 2024