Dawidowicz v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 61

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dawidowicz v Commissioner of Police, NSW Police Force [2025] NSWCATAD 61

Hearing dates:

17 November 2023

Date of orders:

11 March 2025

Decision date:

11 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

The decision of the Commissioner of Police to revoke Mr Dawidowicz’s Category AB firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – revocation of a Category AB firearms licence – fit and proper person - public interest – criminal and traffic offences – victim of shooting – cultivation of cannabis at house owned by Applicant – genuine reasons – incorrect information on licence applications

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Adams v Commissioner of Police, NSW Police Force [2017] NSWCATAD 194

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

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

Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Commissioner of Police v Toleafoa [1999] NSWCATAP 9

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Cramp v Commissioner of Police, NSW Police Force [2023] NSWCATAD 251

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

Kogias v Commissioner of Police [2020] NSWCATAD 297

Leatham v Commissioner of Police [2021] NSWCATAD 121

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

McDonald v Director-General of Social Security (1984) 1 FCR 354

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62

O’Brien v Commissioner of Police [2022] NSWCATAD 259

Sullivan v Civil Aviation Authority (2014) 22 FCR 555

Todororovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192

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

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

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Category:

Principal judgment

Parties:

David Dawidowicz (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00221419

Publication restriction:

(1) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of evidence given during the Private Hearing on 17 November 2023 and contained in the Confidential Material and Confidential Statement is prohibited.

(2) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of any evidence given during the Private Hearing on 17 November 2023 or the contents of the Confidential Material and Confidential Statement is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.

(3) Pursuant to section 64(1)(b) and (c) of the Civil and Administrative Tribunal Act 2013 the publication or reporting of the Private Hearing on 17 November 2023, including any evidence given in the hearing is prohibited.

(4) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. The case is about whether Mr Dawidowicz’s firearms licence should have been revoked.

2. The Commissioner of Police revoked Mr Dawidowicz’s licence on the basis that he is not a fit and proper person to hold a firearms licence and that it would be contrary to the public interest for Mr Dawidowicz to continue to hold a firearms licence.

3. The Tribunal must decide what is the correct and preferable decision in all the circumstances of the case.

4. Unless otherwise stated, all references to legislative provisions are references to the Firearms Act 1996.

Background

Licence history

2013 revocation

5. Mr Dawidowicz was issued with a Minors Firearms Training Permit in 2003.

6. Mr Dawidowicz was first issued with a Category AB firearms licence (licence) in 2009. The Commissioner suspended this licence on 25 May 2013.

7. On 5 August 2013 the Commissioner decided to revoke the firearms licence on the basis of the following allegations:

• Mr Dawidowicz had “possible associations with outlaw motorcycle gangs” and that Mr Dawidowicz was shot at on 22 May 2013 “in a public place”.

• Mr Dawidowicz was found in possession of ecstasy pills and amphetamine (speed) on 9 April 2008. He was charged and convicted in the Local Court of two counts of ‘possess prohibited drug’ and given two $400 fines.

• Mr Dawidowicz was found in possession of three bags of cannabis on 12 August 2011, each weighing 8.6 grams, 9.0 grams and 16.6 grams. He was charged and convicted in the Local Court of ‘possess prohibited drug’ and issued with a $500 fine.

8. I note at this point that Mr Dawidowicz’s lawyer, Mr Daniel Allam, in a letter dated 28 August 2013, contested the first point the above paragraph. Mr Allam stated that Mr Dawidowicz was the victim of a shooting at a house on 1 August 2010, not in a public place in 2013. He also stated that Mr Dawidowicz denied any associations with outlaw motorcycle gangs and any intelligence or criminal information to that effect is misinformed and incorrect.

9. The incidents giving rise to these allegations are discussed further below under the heading ‘The hearing’.

10. Mr Dawidowicz exercised his right to seek an internal review of the 2013 revocation decision. In an undated statement Mr Dawidowicz said in respect of the 2010 shooting, he attended a house in order to pick up his mobile phone that he had left there earlier that day. He said he was the victim of a “walk-up shooting” and was shot in his upper body. The perpetrators of the shooting were never captured. He said: “I regret attending the residence and since that date have distanced myself from anyone that I believe to be of a negative influence in my life”. He did not know why Police had suspended and revoked his licence.

11. On 18 November 2013 a Senior Adjudicator conducted an internal review and decided to set aside the revocation decision. The officer accepted that the shooting occurred in 2010 and that no charges were laid against Mr Dawidowicz following that incident. The Senior Adjudicator considered Mr Dawidowicz’s driving and criminal history, in particular the drink driving, drug possession and stealing offences. The Adjudicator considered these offences gave rise to public safety concerns, particularly as Mr Dawidowicz had been found in possession of “small, individually bagged quantities of prohibited drugs” from which the Adjudicator inferred that Mr Dawidowicz “may be dealing in drugs, which raises the potential for associating with the criminal element”. The Adjudicator observed that it was the first time Mr Dawidowicz had come to the notice of the Police regarding firearms and decided to set aside the revocation decision and that Mr Dawidowicz’s licence should be reinstated.

2023 revocation – the decision under review

12. Mr Dawidowicz’s Category AB firearms licence was re-issued on 3 February 2015 and again on 14 November 2019.

13. The licence issued in 2019 was due to expire on 10 December 2024, but on 6 May 2022 the Commissioner decided to suspend the licence after Mr Dawidowicz was charged with ‘drive vehicle, illicit drug present in blood’, which the Police alleged was cocaine. At that point in time the charge had not yet been determined in the Local Court.

14. Mr Dawidowicz’s licence was revoked on 16 May 2023. In addition to the drug driving charge referred to above, the Adjudicator also took into account an allegation that a person with “extensive adverse holdings associations” resided with Mr Dawidowicz. The Commissioner considered that this gave rise to the possibility that Mr Dawidowicz may “be coerced into giving access to firearms in [his] possession to a person, or persons, unauthorised to possess and use firearms” and this might be a risk to public safety.

15. Mr Dawidowicz exercised his right to internal review. His solicitor, Mr Marando, by letter dated 19 June 2023, stated Mr Dawidowicz lives alone and has done so since 5 February 2023.

16. On internal review, the Senior Adjudicator took into account Mr Dawidowicz’s entire licensing, traffic and criminal history. The officer described Mr Dawidowicz’s driving record as “abysmal” and observed that the driving offences concerned had a direct impact on public safety. The Senior Adjudicator noted that the ‘drive vehicle, illicit drug present in blood’ had not yet been determined by the Court but was satisfied on the balance of probabilities that the alleged conduct in fact occurred. The Senior Adjudicator also found that Mr Dawidowicz failed to notify the Firearms Registry of his change of address. On 3 July 2023 the Senior Adjudicator affirmed the revocation of the licence.

17. Mr Dawidowicz lodged an application for review with the Tribunal Registry on 11 July 2023.

Administrative review jurisdiction

18. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to revoke a firearms licence is derived from subsection 75(1)(c) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

19. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: refer to section 63 of the Administrative Decisions Review Act 1997.

20. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

21. The Tribunal is to approach the question of whether or not Mr Dawidowicz’s licence should be revoked afresh, without any presumption as to the correctness of the decision under review: see McDonald v Director-General of Social Security (1984) 1 FCR 354, 357.

Relevant legislation

22. The relevant legislation governing the issuance and revocation of firearms licences is the Firearms Act 1996. The underlying principles are stated in section 3(1) to include:

“(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.”

23. The Commissioner must be satisfied that an applicant has a genuine reason for possessing and using a firearm before she can issue a firearms licence for that firearm: section 12(1). If the genuine reason can no longer be established, the licensee must notify the Commissioner of that fact within 14 days: clause 15 of the Firearms Regulation 2017.

24. The Commissioner has a discretion to revoke a person’s firearms licence on a number of grounds, including for any reasons for which the licensee would be required to be refused a licence of the same kind (section 24(2)(a) of the Firearms Act 1996). One such instance is where the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because the applicant’s way of living or domestic circumstances: section 11(4)(a) of the Firearms Act 1996.

25. The Commissioner may also revoke a firearms licence if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (section 24(2)(c) of the Firearms Act 1996) or if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence (section 24(2)(d) of the Firearms Act 1996 and clause 20 of the Firearms Regulation 2017).

26. According to section 24(2)(b) of the Firearms Act 1996 a licence may be revoked:

…(b)  if the licensee—

(i)  supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii)  contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii)  contravenes any condition of the licence, or

27. One provision of the Act containing which can give rise to a contravention is section 69, which requires that a licensee must inform the Commissioner of their change of residential address within 7 days.

The hearing

Adjournment application

28. At the commencement of the hearing, Mr Dawidowicz made an application for an adjournment. He sought to have the hearing be adjourned until he was able to have his lawyer represent him. Mr Dawidowicz explained that due to financial pressures he decided four days prior to the hearing that he could not afford to be legally represented. He said he would need time to get together sufficient money to pay for his lawyer. The basis of the application for the adjournment was that Mr Dawidowicz wanted time to get enough money to pay for private legal representation.

29. Ms Chenhall, for the Respondent, handed up a copy of an email exchange she had with Mr Dawidowicz’s solicitor, in which the solicitor informed Ms Chenhall that he had ceased to act on 9 November 2023, some eight days prior to the hearing.

30. The Commissioner opposed the adjournment application. Ms Chenhall submitted that the Respondent does not have endless resources and that the Commissioner was prepared for the hearing to proceed. She said that Mr Dawidowicz had time to inform the Commissioner about the request for the adjournment and there was no evidence to show that he would not be in the same position and unable to pay for legal representation when the matter comes back before the Tribunal for hearing.

31. I refused the adjournment. I did so because there was no evidence that Mr Dawidowicz’s financial position would change so that he would be in a position to retain private legal representation. I considered that it would be contrary to the guiding principle in the Civil and Administrative Tribunal Act 2013, as set out in section 36(1), to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. While a party is entitled to be legally represented in these proceedings, there is no requirement for such representation and the proceedings are not so technical as to disadvantage a self-represented litigant. Mr Dawidowicz had the benefit of legal assistance in preparing his case, including written submissions prepared by counsel. To adjourn the hearing of his application in the circumstances would impact parties in other cases awaiting a hearing before the Tribunal and would also add to the costs of the Respondent. It was for these reasons I refused the application.

Order that part of the hearing conducted partly in private and restricting publication and disclosure

32. On 25 October 2023 the Tribunal made an order under section 59 of the Administrative Decisions Review Act 1997 that the Commissioner was not required to lodge copies of the Confidential Material as specified in the Confidential Statement with the Tribunal as part of the section 58 documents.

33. The substantive application came before me on 17 November 2023. The Commissioner had lodged various material, referred to as the Confidential Material and Confidential Statement in the various orders made by the Tribunal prior to the hearing.

34. I determined that I should conduct part of the hearing on 17 November 2023 as a hearing in private under section 49(2) of the Civil and Administrative Tribunal Act 2013 (‘Private Hearing’) in order to deal with the Confidential Material as referred to in the Confidential Statement. This part of the hearing was conducted in the absence of Mr Dawidowicz and the public.

35. Previous orders had been made by the Tribunal restricting disclosure and publication of the Confidential Material and Confidential Statement. In order to deal with this material, I was satisfied that it was desirable to conduct part of the hearing in private given its confidential nature. The purpose of the Private Hearing was to hear the Respondent’s representative about nature of the Confidential Material and its relevance and probative value to the issues before the Tribunal.

36. I also made the following orders:

1. An order prohibiting the publication of evidence given during the Private Hearing on 17 November 2023 and contained in the Confidential Material and Confidential Statement. This order was made under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

2. An order restricting the disclosure of any evidence given during the Private Hearing on 17 November 2023 or the contents of the Confidential Material and Confidential Statement to the Respondent, the Respondent’s legal representatives and the Tribunal. That order was made under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

3. An order prohibiting the publication or reporting of the Private Hearing on 17 November 2023, including any evidence given in the hearing. That order was made under section 64(1)(b) and (c) Civil and Administrative Tribunal Act 2013.

Evidence and related submissions

Contact with Police and courts

2003 Cannabis caution

37. According to Computerised Operational Policing System (COPS) records on 26 October 2003 Police found Mr Dawidowicz (then 17 years old) in a car. When asked by Police he volunteered that he was “smoking some ‘pot’”. Police seized 1.32 grams of green vegetable matter and Mr Dawidowicz was given a caution and a move on direction.

2004 Various driving convictions

38. In June 2004 the Local Court found Mr Dawidowicz guilty of the following offences and the imposed these sentences:

• ‘unlicenced for class, class C/R/LR/MR-1^st offence: $400 fine

• ‘drive vehicle recklessly/furiously or speed/manner dangerous’: $1,00 fine and disqualification of driver’s licence for 12 months

• ‘use unregistered vehicle on road area (not a trailer)’: section 10 dismissal

• ‘use uninsured motor vehicle’: section 10 dismissal

• ‘motor bike rider (alone) not wear/secure fit approved helmet’: $40 fine

39. A section 10 dismissal is an order made by the Court under section 10 of the Crimes (Sentencing Procedure) Act 1999 where the court does not proceed to a conviction but finds the person guilty of the offence and directs that the charge be dismissed.

40. The Police Facts Sheet records that Mr Dawidowicz was riding a trail bike without a helmet, without registration plates or lights. It records that when Police turned on their lights and sirens, Mr Dawidowicz rode the trail bike into a park and onto other roads in an attempt to evade Police.

41. Mr Dawidowicz agreed that this conduct was highly dangerous to others and to Police. He agreed that it was a dirt bike and that type of motorcycle cannot be ridden on the road. He said it was “stupid of [him]”.

2005 Cannabis caution

42. According to the COPS report on 3 April 2005 Police approached three people in a car, one of whom was Mr Dawidowicz. Mr Dawidowicz produced a “small amount of green vegetable matter” from his bag. The material weighed 0.37 grams and Mr Dawidowicz was issued with a cannabis caution.

2006 Shoplifting conviction

43. In November 2006 Mr Dawidowicz was convicted of ‘shoplifting value <=$2000’ and given a $300 fine.

44. According to the Police COPS Event record, on 11 October 2006 Mr Dawidowicz was accused of shoplifting various items from a Bunnings store.

43. Mr Dawidowicz explained that he had items in his pocket and forgot they were there as his hands were full carrying other things.

44. Ms Chenhall asked why, according to the COPS record, Mr Dawidowicz had removed items from their packaging before placing them in his pockets. Mr Dawidowicz said that he did not remember doing that. Ms Chenhall suggested he removed the items from their packets in order to steal them and Mr Dawidowicz responded with: “that’s what it looks like”.

2008 Drug possession convictions

47. In April 2008 Mr Dawidowicz was convicted of two charges of ‘possess prohibited drug’. He was given fines of $200 and $400.

48. According to the Police Facts Sheet, on 9 April 2008 Mr Dawidowicz and a co-accused were in a car and stopped by Police. Mr Dawidowicz admitted he had cannabis in the console of the vehicle. Police conducted a search and found a clear plastic sleeve containing two small resealable plastic sleeves containing six crushed ecstasy pills and an amount of light brown coloured powder amphetamine (speed) within the middle console of the vehicle. In a subsequent Police “notebook interview”, Dr Dawidowicz admitted attending premises that were the subject of Police surveillance and purchasing $20 of cannabis. He also made an admission that he was in possession of the ecstasy and the speed. He was unable to inform Police where the cannabis was and stated he had lost it. Police weighed the drugs and there was 0.75 grams of amphetamine and 1.52 grams of ecstasy tablets.

49. Mr Dawidowicz said that the drugs had been in his wallet for “who knows how long” and he did not know they were there. Some were from a New Year’s event.

50. In written submissions, Ms Chenhall argued that Mr Dawidowicz deliberately misled Police and he claimed he had lost the cannabis when it was not located by Police.

2011 Low-range drink driving conviction

51. In February 2011 Mr Dawidowicz was convicted of ‘drive with low range pca’ and given a $450 fine and his driver’s licence was disqualified for three months.

52. Police allege that on 19 December 2010 Mr Dawidowicz tested positive in a roadside breath test to alcohol and on further testing he returned a reading of 0.078. I note the Police opinion in the COPS report that Mr Dawidowicz’s ability to drive was “only slightly affected by his alcohol consumption”.

53. Mr Dawidowicz explained that he had almost reached his destination and had just opened up a beer. He agreed he was drinking while driving.

2011 Drug possession conviction

54. In September 2011 Mr Dawidowicz was convicted of ‘possess prohibited drug’ and given a $500 fine.

55. According to the Police Facts Sheet, on 12 August 2011 a car in which Mr Dawidowicz was travelling was stopped for a random breath test. Police searched the vehicle and Mr Dawidowicz was found to be in possession of three resealable plastic bags of green vegetable matter, each weighing 8.6 grams, 9.0 grams and 16.6 grams. The third bag contained 12 smaller resealable bags with each containing one gram of cannabis. Police note in the Facts Sheet their opinion that “[t]his is a common weight and form of packaging used by those in the street level distribution of Cannabis”. Mr Dawidowicz admitted this was cannabis in an interview with Police recorded in a an official Police notebook.

56. Mr Dawidowicz’s evidence was that he was not dealing in drugs. He bought the cannabis and that was how it was packaged up. He said that he has always worked hard in the construction industry and he had no need to sell drugs.

57. In written submissions Ms Chenhall argued that Mr Dawidowicz intended to supply cannabis because there were 12 individual plastic bags with one gram of cannabis in each of them.

2019 Mid-range drink driving conviction

58. In January 2019 Mr Dawidowicz was convicted of ‘drive with middle range pca – 1^st off’. He was given a $1,000 fine, the minimum disqualification period was imposed and he participated in the alcohol interlock program.

59. The Police Facts Sheet alleged that on 15 December 2018 Mr Dawidowicz did not stop when directed to do so by Police conducting random breath testing. At hearing Mr Dawidowicz said that the Police were packing up and no-one was there pulling him over.

60. The COPS record said that Mr Dawidowicz told Police he had drunk four standard glasses of straight vodka between 10:00pm and 12:15am without eating food. In questioning, Ms Chenhall suggested to Mr Dawidowicz that he knew he was well affected by alcohol. He said he did not think he would be that much over the limit and the thought he would be alright. He said he was drinking between 8:00pm and 12:00am. He said he did not feel that drunk to drive and it was a “stupid decision”. He said he could not deny what was recorded in the Fact Sheet that is, that he smelt of alcohol, his eyes were bloodshot, his speech slurred and he was unsteady on his feet.

61. In written submissions, Ms Chenhall argued that Mr Dawidowicz purposefully ignored the Police direction to stop as he knew he was well over the limit and he would be charged and Police would suspend his licence.

2023 Drug driving conviction and appeal

62. Mr Dawidowicz was convicted in September 2023 of ‘drive vehicle, illicit drug present in blood etc – 2^nd+off’ in the Local Court. He was given a $500 fine and his driver’s licence was disqualified for 6 months. Mr Dawidowicz lodged an all ground appeal to the District Court but the appeal had not been determined as at the date of the Tribunal’s hearing.

63. Mr Dawidowicz’s lawyers state in written submissions in response to the Respondent’s submissions, that “[t]he success of the appeal will rest upon whether the police have complied with their legislated obligations”.

64. The Police Facts Sheet alleged that on 26 November 2021 Mr Dawidowicz was driving and stopped by Police for Roadside Drug and Alcohol Testing. Mr Dawidowicz tested positive for cocaine including on secondary testing at the police station. On later forensic testing the oral fluid sample tested positive to cocaine and delta-9-tetrahydrocannabinol, which I understand to be THC, found in cannabis.

65. Mr Dawidowicz said he was with mates he had not seen for a while. He said that he was pulled over almost three days after taking cocaine. He thought he was OK to drive and did not know the drugs remained in your system for that long.

Traffic record

66. Ms Chenhall suggested to Mr Dawidowicz that he had approximately 35 offences on his driving record for the period 2002 to 2023. He said that when he was younger he was “a bit of an idiot”, but he had matured and changed over the years. He said he thought his recent driving record was pretty good and that the offences were not that bad. He agreed that after being penalised with fines or the loss of his driver’s licence, he had still committed driving offences.

67. Ms Chenhall suggested to Mr Dawidowicz that 2020 was the only year on his record that did not have offences listed. He said it looked that way. She suggested that he in fact had not matured and he had received a demerit point warning letter in 2022 when he was 35 years old and approximately two months after the lifting of a driver’s licence suspension in August 2022 Mr Dawidowicz committed a speeding offence of speeding less than 10 kilometres over the limit.

68. In written submissions, Ms Chenhall said that Mr Dawidowicz had numerous infringements over a 21 year period and this displayed a “complete disregard” for the road rules. She said he repeated several of the same offences which suggested “an utter failure to learn from his mistakes or reflect on his driving behaviour and the risk it poses to others and alter his behaviour”. She submitted that Mr Dawidowicz “has for 21 years maintained a dangerous course of driving conduct, which shows a disregard for public safety, including his own” and that this indicated his “long disregard for the law”.

69. Mr Dawidowicz rejected the proposition that he had no intention of complying with traffic laws. He explained that he would think about work and get distracted and also the speed limit can change and he could not keep track of it sometimes.

2010 victim of shooting

70. On 2 August 2010 Mr Dawidowicz was the victim of a shooting. According to the COPS Event record, he was visiting the house of Mr John Troumbukis. Mr Chris Troumbukis had some friends over to the house. The friends left and Mr Dawidowicz remained behind. Mr Dawidowicz was watching TV and playing video games in the garage. Four rounds were fired and one of these rounds struck Mr Dawidowicz in his upper right arm, exiting near his collarbone. When Mr Dawidowicz was questioned about the incident, Police state that he was not able to offer any further information about what happened.

71. Mr Dawidowicz gave evidence that the shooting was not for him, it was not his address.

72. According to a Police intelligence report contained in the Supplementary section 58 documents, Police received information from a member of the general public on 3 August 2010 that Mr Dawidowicz had “pissed off” people in the area “by selling them low quality Cocaine”. The source alleged that Mr Dawidowicz and Mr Chirs Troumbukis “were mixing the cocaine they were selling with various [sic] products making the quality of the cocaine very poor”.

73. In oral evidence, Mr Dawidowicz denied ever selling drugs.

74. In written submissions, the Commissioner contended that Mr Dawidowicz’s “domestic associates are clearly willing to resort to using firearms” and this should give the Tribunal “extreme concerns” if Mr Dawidowicz were to possess and use firearms.

75. In written submissions, Mr Dawidowicz argued that the Intelligence Report carried the least reliable admiralty rating of “F 6 Unconfirmed”, which meant that the information came from an unidentified community source. His lawyers submitted that this was hearsay and that it was possible that the shooter or an associate was “attempting to promulgate some form of (false) justification for the shooting to negate any ill-feeling within the community”.

2022 search warrant and discovery of 295 cannabis plants

76. On 1 September 2022, Police executed a search warrant at a house owned by Mr Dawidowicz. Police discovered 295 cannabis plants were being cultivated using hydroponic equipment. Police allege the street value of the plants was approximately $885,000.

77. For ease of reference, I will refer to the house in which the cannabis was found as the ‘grow house’.

78. The Commissioner pointed to a number of aspects of these circumstances which she argued showed that Mr Dawidowicz knew his house was bring used to grow cannabis:

• He had owned the house since 13 May 2022 and there was a short time from the purchase of the house to the execution of the search warrant

• The water bill for the house was going to Applicant

• After Police issued an Occupiers Notice to Mr Dawidowicz following the search, he made no contact with Police despite the damage caused by Police when they forced entry and also the damage caused to the house from the growing of cannabis.

79. In written submissions, Ms Chenhall said that a homeowner would be expected to contact Police if they learnt their house had been damaged and used for cannabis cultivation. She submitted that Mr Dawidowicz did not contact Police because he knew that would lead to “further investigations into his knowledge and role in the cultivation of cannabis”. Ms Chenhall contended that the Tribunal could draw an inference from all of these aspects that Mr Dawidowicz knew or was wilfully blind or an accessory or concealed the cultivation of cannabis.

80. In written submissions, Mr Dawidowicz argued that there was no evidence linking him to these activities at his house. He had let the house out well before the search and there was no evidence he knew it would be or was used for this purpose. Mr Dawidowicz’s DNA and fingerprints were not found on any of the items used for cannabis cultivation. No charges were laid against him. His lawyers submitted that a person would be unlikely to grow a significant quantity of cannabis in a house that is in their own name.

81. The Applicant’s lawyers also said in written submissions that the COPS records suggest that only one person was seen by neighbours or on CCTV and this person was a man of Asian appearance. They said that the fact that Mr Dawidowicz had not been in contact with Police about compensation for the damage caused by search warrant does not lead to an inference that he knew about the drug cultivation itself. The Applicant’s lawyers said that is a “a very long bow to draw”.

82. In oral evidence Mr Dawidowicz explained that he had no idea that the house was being used to cultivate cannabis. He said that he bought the house as an investment property and was renting it out. It was when the rent was not paid that he went to the house and he saw that the door was damaged on the property. He knocked on the neighbour’s door and went to Liverpool Police Station. This was about two weeks after the police search and about mid to late September.

83. Ms Chenhall pressed Mr Dawidowicz and suggested that he allowed his house to be used as a crop house. He said: “of course I didn’t” and said it was a beautiful house. Ms Chenhall asked Mr Dawidowicz why he had not filed the tenancy agreement in these proceedings. He said it was a private lease. He rented it to someone his nephew knew at work.

84. Mr Dawidowicz agreed that he did not take a bond. He said he did not think about doing that.

85. Mr Dawidowicz denied going to the house at all after he had purchased it. However, Ms Chenhall challenged this evidence as the water bills were addressed to Mr Dawidowicz and went to that address. She put to Mr Dawidowicz that he must have been to the house. He said that the tenant must have paid the water bills. I note that the Respondent filed two water bills including a water bill issued on 26 October 2022 addressed to Mr Dawidowicz at the address of the house in question.

86. Ms Chenhall suggested to Mr Dawidowicz that he never attended the police station. Ms Chenhall pressed Mr Dawidowicz for an Event Number which she argued Mr Dawidowicz would need for any insurance claim for the damage to the property. Mr Dawidowicz denied making this evidence up about attending the police station. He said the Police did not give him an Event Number and told him that they knew who the offender was who had used his house to grow cannabis. Mr Dawidowicz said that he had never had to claim on insurance before and did not know what he was doing. He also said that he got caught up with work.

87. He said that his insurer was no help because the incident occurred within three months of being insured. He said he had only insured for the bare minimum, that is, for fire and theft. He said he called his insurer but did not put in a claim. He said that he did not see the Occupier’s Notice that Police stated they left at the premises.

Genuine reasons

88. Mr Dawidowicz said that he wanted a firearms licence because he wanted to engage in hunting and shooting and also to help farmers with vermin control.

89. Under questioning, Mr Dawidowicz agreed that in his 2009 application he relied on his membership of the Sporting Shooters Association of Australia (SSAA) for the genuine reasons of sport/target shooting and recreational hunting/vermin control. He did not provide any permission to shoot from the owner or occupier of rural land (refer to paragraph (b) of the relevant Reason in the Table to section 12 of the Firearms Act 1996).

90. I note that Mr Dawidowicz relied on the same genuine reasons of “Sport Target Shooting” and “Rec Hunting Vermin Control – Hunting Club” in his re-application for a Category AB firearms licence in 2014.

91. It is difficult to discern from the online re-application form for the 2019 application but it is not disputed by Mr Dawidowicz that he again relied on the same genuine reasons and this accords with the evidence he provided in his affidavit of 12 September 2023.

92. Ms Chenhall took Mr Dawidowicz to the attendance records provided by SSAA NSW, dated 19 July 2023. In order to meet the participation requirements set out in clauses 107 and 108 of the Firearms Regulation 2017 for the compliance period for the approved shooting or hunting club of which he is a member the following participation requirements apply:

93. For the genuine reason of sport/target shooting: four shooting activities (clause 107)

94. For the genuine reason of recreational hunting/vermin control: two hunting club events (clause 108)

95. The records from SSAA indicated that Mr Dawidowicz had participated in no such activities from 2017/2018 onwards. In 2016/2017 he was recorded as completing four target shooting activities but no hunting club events. It also appeared from those records that Mr Dawidowicz had only completed the four shooting activities and two hunting club events in 2010/2011 with all other years showing one or the other or both the shooting activities and hunting club events being below the required number from 2008/2009 to 2022/2023.

96. Mr Dawidowicz said that “half of the time” he attended the SSAA he did not get marked off or forgot to get marked off. He said he should not have to ask to get marked off. He said that the range was shut during the Covid pandemic but was not sure when it reopened. When Ms Chenhall suggested to him that the range was open in 2017-2019, some of 2020 and some of 2022 and that in fact he did not attend the required number of activities in those years, Mr Dawidowicz said he was “busy working”. He said he would have gone into the range before Covid but conceded that after Covid he had not gone in at all.

97. Ms Chenhall suggested to Mr Dawidowicz that he had not informed the Firearms Registry that he no longer met the requirements for his genuine reasons. Mr Dawidowicz said he did not think he had to do that and that as at the end of 2022 to the beginning of 2023 his licence was already suspended. He said that he was occupied with work including the closure of a business and under a lot of stress. He again said he was attending in earlier days but became too occupied by work over the last few years and it was hard to get to the activities. He conceded that he had not met the participation requirements for the “last few years”.

98. Mr Dawidowicz agreed that did not inform the Firearms Registry that he was not able to meet the requirements for genuine reasons. He said that he wanted to get back into vermin control but it had been hard to find the time to do so. Ms Chenhall suggested to him that he had not informed the Firearms Registry because he did not want to hand in his licence and firearms because he had no genuine reason. Mr Dawidowicz said he did not know anyone who had done that and pointed out that it was so hard to get a firearms licence in the first place and not easy and so why risk handing it in to not get it back again. I would be a whole process to get it back again. He agreed that it would be too much hassle and that process would be time consuming and would require selling his firearms in the meantime while he did not hold a licence. He said he did not even think or consider informing the Firearms Registry that he was not able to meet the participation requirements for his genuine reasons.

99. Mr Dawidowicz then said that he had a property on which to shoot. He said he did not put that down and did not know why. He said he could not even remember where it was. It was a long time since he had been there.

100. Ms Chenhall pointed out that Mr Dawidowicz had not provided a permission to shoot from the landowner (refer to [93] for the relevant provision). He said that the landowner stopped allowing people to shoot on the property as there were too many coming without a booking. This occurred in 2017.

101. Mr Dawidowicz referred to going shooting in Queensland and Ms Chenhall asked him whether he had ever informed the Firearms Registry. He said not that he could remember and said he did not know he had to do that.

88. In written submissions, Ms Chenhall argued that Mr Dawidowicz had only once complied with his genuine reason requirements since 2009, a 13 year period of non-compliance with the basic statutory requirements of his firearms licence.

Correctness of information provided in firearms applications

2009 application

103. Ms Chenhall asked Mr Dawidowicz about his 2009 firearms licence application form. In that form he answered “no” to the following question at H.e):

Have you in NSW or elsewhere;

…

e) Within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs/plants, fraud/dishonesty/stealing, prescribed restricted substances, terrorism, violence, robbery, organised criminal groups and recruitment, or an offence of a sexual nature?

104. Mr Dawidowicz agreed that answering “no” was an incorrect answer. Ms Chenhall pointed out that Mr Dawidowicz had been convicted of shoplifting in 2006. He said he did not declare the conviction on the 2009 application form because he would have “forgotten about it”. He said it was easy to forget years later and did not think anything of it in 2009 to tick “yes” on the form.

105. Ms Chenhall drew Mr Dawidowicz’s attention to his conviction for drug possession in 2008. He agreed to answer “no” on the form given this conviction was an incorrect answer. He explained that he forgot about that conviction as well and that is why he would have ticked “no” on the 2009 application form. He denied he could remember going to the Local Court for that charge.

106. Ms Chenhall suggested to Mr Dawidowicz that he did not tick “yes” on the form because it would mean that the Firearms Registry may not approve his firearms licence. Mr Dawidowicz maintained that he “totally forgot about” the convictions.

2014 re-application

107. Ms Chenhall asked Mr Dawidowicz about his 2014 licence re-application form. Mr Dawidowicz agreed that he had ticked that he was a primary producer. Ms Chenhall suggested to him he was not a primary producer. Mr Dawidowicz said he would have ticked that because he was looking into kangaroo shooting as a business. He agreed he had provided no evidence that he was a primary producer to the Firearms Registry.

108. Mr Dawidowicz agreed that he had ticked “no” to question F.(e) on the 2014 form, which read:

Have you in NSW or elsewhere;

…

(e) Within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs/plants, fraud/dishonesty/stealing, prescribed restricted substances, terrorism, violence, robbery, organised criminal groups and recruitment, or an offence of a sexual nature?

109. Ms Chenhall pointed out that in fact Mr Dawidowicz had been convicted of shoplifting in 2006 and drug possession in 2008 and 2011. Mr Dawidowicz agreed that on this basis to tick “no” to the question was incorrect. He agreed that he ticked “no” as he knew he would not get his firearms licence. He said he knew that if he ticked “yes” the Firearms Registry might knock his application back. Ms Chenhall suggested to Mr Dawidowicz that he had “lied” on the form and he said “yes”. Ms Chenhall asked Mr Dawidowicz whether he knew it was an offence to knowingly provide false or misleading information on a firearms licence application form (refer to section 70). He said: “not really, no”.

110. Mr Dawidowicz said he did not think his offences were “anything big”. Describing himself as “young and dumb” at the time of the offending.

2019 re-application

111. Mr Dawidowicz agreed that he was not using firearms as at the time of the 2019 re-application for a firearms licence and that he did not have a genuine reason for requiring firearms. He agreed he made the 2019 application on the basis that he wanted to keep his firearms, despite the fact that he did not meet the participation requirements with the SSAA.

112. Ms Chenhall asked Mr Dawidowicz why he had ticked “no” to the following question on the 2019 form:

Have you in NSW or elsewhere:

(a) Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?

113. I note at this point that Mr Dawidowicz’s firearms licence was suspended and revoked in 2013 but re-issued to him following an internal review decision in 2013.

114. Mr Dawidowicz responded by saying that he did not know why he ticked “no” to that question. He agreed his answer was incorrect. He denied ticking “no” because he knew it may mean he would not get his firearms licence. He said it was “stupid of me” to have ticked the wrong answer and that the Firearms Registry would know already that his licence had been suspended and revoked in 2013.

115. Mr Dawidowicz also ticked “no” to this question on the 2019 form:

Have you in NSW or elsewhere:

…

(e) Within the last 10 years, been convicted of an offence involving firearms or weapons, prohibited drugs/plants/prescribed restricted substances, fraud/dishonesty/stealing, terrorism, violence, assaults against law enforcement officers, robbery, organised criminal groups and recruitment, riot, affray or an offence of a sexual nature or are you presently subject to a good behaviour bond in relation to one of those offences?

116. Mr Dawidowicz agreed that he answered no in order “to try to have less issues getting my licence”.

117. Ms Chenhall pointed out to Mr Dawidowicz that he had been convicted of drug possession in 2011. He said he would have “forgot about that offence”. He said he did not have any of the paperwork he had for these proceedings to remind him of the offence when he completed the form. He said he knew he had a mid-range drink driving offence and that occurred in his “younger stupid days”. He described the 2019 mid-range drink driving offence in 2019 as due to being “stupid” and because of “peer pressure”.

Notification of change of address

118. Mr Dawidowicz said that he did not inform the Firearms Registry that he had moved house. He said he did not do that because his licence had been taken off him and he had no firearms at his property. He then said that he did notify or tried to notify the Firearms Registry about the change to his safe storage address but couldn’t as his licence had been suspended. He said he thought he had called both the Firearms Registry and SSAA. He said that he tried to do it online but it would not allow access because his licence was suspended. He thought he would have changed his address in March 2023 before his solicitor’s letter of 19 June 2023 which referred to Mr Dawidowicz’s change of address. He said that for some reason he was struggling to change his address and did not know why. He then said he did call the Firearms Registry, probably when he received the 16 May 2023 revocation letter. He said that he saw his solicitor and his solicitor asked him to change his address with the Firearms Registry, even though he did not have a licence at that time. He thought he saw his lawyer in May 2022.

Character references

119. Mr Dawidowicz relied on three character references.

120. Mr McAleese employed Mr Dawidowicz after he graduated from high school. In a letter dated 10 September 2023, he attests to Mr Dawidowicz’s skills as an employee. He states his belief that Mr Dawidowicz is honest, trustworthy and hard working.

121. Mr Mirabilio has known Mr Dawidowicz for 25 years as a past neighbour and close friend. It is notable that Mr Mirabilio is the owner of a gun shop and he has also been on what he describes as “numerous hunting trips” with Mr Dawidowicz. In his letter, dated 11 September 2023, Mr Mirabilio describes Mr Dawidowicz as being a person of “integrity and honesty”. He stated that on hunting trips he has shown “a great respect for firearms safety not only for himself but for all those participating in firearms activities with him”.

122. Ms Kress, by letter 8 September 2023, stated that she has known Mr Dawidowicz since he was 13 years of age.
     She described Mr Dawidowicz as like a son and stated that he is “honest, reliable, hardworking and a very respectable you man”. She describes him as a “kind and generous person” and can be trusted with a firearms licence.

123. I make the observation that none of these references refer to Mr Dawidowicz’s criminal or traffic history, the 2010 shooting or Police execution of a search warrant at the house he owned.

Private hearing

124. [NOT FOR PUBLICATION]

125. [NOT FOR PUBLICATION]

126. [NOT FOR PUBLICATION]

127. [NOT FOR PUBLICATION]

128. [NOT FOR PUBLICATION]

Submissions made by the parties

129. Both parties provided written submissions and made oral closing submissions.

Contact with Police and courts

130. Mr Dawidowicz stated in his brief affidavit that he has never “used or threatened violence or the use of a firearm against anyone”. In closing submissions, he acknowledged that his driving record was “not the best”.

131. Ms Chenhall submitted that Mr Dawidowicz’s criminal history “clearly shows his blatant continuous disregard for the law” and that the penalties imposed had no deterrent effect upon him. She argued that Mr Dawidowicz continued committing driving offences, even after he was given infringement notices. He had also driven under the influence of drugs and alcohol which indicated a “complete disregard for road rules and regulations and the safety of other road users, including himself”.

132. Ms Chenhall argued that the Tribunal could draw an inference from the material that Mr Dawidowicz “appears to engage in the possession and use of prohibited drugs, and further that he may in fact be involved in the sale of prohibited drugs”. Ms Chenhall said that this involvement had occurred over the course of several years and was “commonplace in his life”.

133. Ms Chenhall argued that the evidence of Mr Dawidowicz’s drug use and possession gives rise to significant risk. She argued that Mr Dawidowicz took no responsibility for his actions and had not been truthful in his evidence about his drug use and possession. She contended that Mr Dawidowicz makes up a version of events to suit the questions and assertions put to him.

134. Ms Chenhall said that Mr Dawidowicz gave “farcical responses” such as when he was questioned about the shoplifting charge and said that he forgot about items in his pocket, when the evidence in the COPS Event was that he had removed items from their packages and put them in his pockets. He did so because he wanted to steal those items. He also suggested that he took drugs because of peer pressure when he was 35 or so years of age.

135. Ms Chenhall said that the Tribunal could determine the matter on an Applicant’s traffic record alone. She said that the offending is recent and that past behaviour is an indicator of future behaviour.

136. Ms Chenhall described Mr Dawidowicz’s explanations about the grow house as “farcical”. She urged the Tribunal to accept the evidence of Detective Hollingsworth that Mr Dawidowicz had not made contact with Police following execution of the search warrant despite Police leaving an Occupier’s Notice on the kitchen bench of the house. She requested that I view the footage associated with the search and submitted that there was significant damage to the property. I did view that footage after the hearing. I note that Senior Constable Hollingsworth’s evidence in his statement dated 9 November 2023 described the damage caused to the front door by Police when they force entry as “minor”.

137. Ms Chenhall argued that it was not believable that a homeowner would not go to Police and obtain an Event Number and make a claim on insurance nor was it likely that Mr Dawidowicz would rent the house out, not take a bond and have no records of such a lease. She submitted that the house was not rented out. She pointed out that the water bills were being sent to that address in Mr Dawidowicz’s name.

Genuine reason

138. Mr Dawidowicz said that he wanted to keep his firearms licence so he can get back into the sport. He also argued that the effect of the Covid pandemic on his ability to engage on participation activities should be taken into account.

139. Ms Chenhall submitted that Mr Dawidowicz had not met the participation requirements for a considerable period of 13 years. Ms Chenhall argued this was a serious offence that cannot be overlooked or explained away by Mr Dawidowicz. It demonstrated a “disregard for the licensing regime” “over a prolonged period of time” and that the public interest requires that licensees are aware of and comply with firearms legislation.

140. Ms Chenhall suggested that Mr Dawidowicz had not been truthful with the Commissioner because he could not establish he had a genuine reason for possessing or using a firearm under a firearms licence.

Correctness of information provided in firearms applications

141. Ms Chenhall argued that Mr Dawidowicz “intentionally misled the Commissioner for the purpose of obtaining his firearms licence” three times. He did this because he knew if he answered “yes” this would invite further scrutiny from the Commissioner and jeopardise his firearms licence application. She said Mr Dawidowicz had been untruthful on every application he had made for a firearms licence, except for a minor’s permit application he made in 2002. She said that fact alone would lead the Tribunal to find that Mr Dawidowicz is not a fit and proper person to have his firearms licence re-issued to him.

142. In written submissions, Mr Dawidowicz argued his convictions occurred some time ago, were minor in nature and it is unclear if he understood what is meant by ‘convicted’.

Consideration

Assessment of the evidence and findings of fact

143. I found Mr Dawidowicz’s evidence to be self-serving at times. He claimed to not be able to recall matters that were adverse to him, for example, his criminal convictions when filling in an application for a firearms licence. He also asserted that he was unaware of certain of his obligations under the firearms legislation, such as the requirement to notify the Commissioner if he no longer could establish he had a genuine reason to possess or use firearms. His explanation that he forgot the items in his pockets when he had his arms full at Bunnings was simply not believable, particularly because these items had been removed from their packaging. He also asserted that he did not think he would be over the alcohol limit or that drugs would still be in his system when he was driving, rather than taking full responsibility for his conduct. He appeared to avoid the consequences of his actions, by seeking to evade Police or failing to stop when directed by Police and by providing false information in firearms application forms. He admitted to not meeting the participation requirements for the genuine reasons of sport/target shooting and recreational hunting/vermin control in the last few years and questioned why a person would risk handing in their licence in to find they would not get it back again and also to have to go through all the hassle of selling their firearms and then going through a whole process to get the firearms licence back again. He said that he did not inform the Firearms Registry that he could no longer establish a genuine reason for possessing and using a firearm because he wanted to get back into the sport and vermin control but hadn’t had the time.

144. The character references provided by Mr Dawidowicz do not refer to Mr Dawidowicz’s criminal and traffic history, the 2010 shooting or the grow house. Reference is made to Mr Dawidowicz showing respect for firearms safety on hunting trips, but the references do not assist me to a great degree, particularly given the breaches of the requirements to meet the participation requirements for the genuine reasons and also the incorrect information on application forms, which are addressed below.

Findings of fact

145. I make the following findings on the balance of probabilities:

1. Mr Dawidowicz was in possession of the following illicit drugs:

1. 1.32 grams of cannabis on 26 October 2003

2. 0.37g of cannabis on 3 April 2005

3. Six crushed ecstasy pills weighing 1.52 and 0.75 grams of amphetamine (speed) on 9 April 2008

4. Three bags of cannabis weighing 8.6 grams, 9.0 grams and 16.6 grams on 12 August 2011. I find that the third bag consisted of 12 smaller resealable bags each containing one gram of cannabis.

2. I reject the suggestion made by the Respondent that Mr Dawidowicz deliberately misled Police by claiming that he had lost the cannabis he said he had when it was not located by Police in a vehicle search on 9 April 2008. The evidence does not lead me to any such finding and I consider this suggestion to be conjecture and reject it. The COPS record states that Mr Dawidowicz told Police that there was cannabis in the console of the vehicle but that no cannabis was found. That does not necessarily mean that Mr Dawidowicz was deliberately misleading Police when he said that it had been lost. There is little information about the context of the conversation that is said to have occurred between Police and Mr Dawidowicz when the car was stopped by Police and I reject the allegation that Mr Dawidowicz deliberately misled Police.

3. In 2004 Mr Dawidowicz was riding a trail bike on the road without a helmet, without registration plates or lights. When Police turned on their lights and sirens Mr Dawidowicz sought to evade Police by riding the trail bike into a park. I find this conduct was dangerous to himself and to others, including Police and note he was convicted of ‘drive vehicle recklessly/furiously or speed/manner dangerous’.

4. Mr Dawidowicz engaged in drink or drug driving on the following occasions:

1. On 19 December 2010 he drove with a low-rage prescribed concentration of alcohol in his breath or blood.

2. On 15 December 2018 he drove with a middle-range prescribed concentration of alcohol in his breath or blood and he did not stop when directed by Police.

5. On 26 November 2023 Mr Dawidowicz drove with illicit drugs in his system, that is, cocaine and delta-9-tetrahydrocannabinol, which I understand to be THC, found in cannabis. I make this finding despite the matter being the subject of an all ground appeal that was yet to be determined as at the hearing of this matter as I am satisfied of it given the testing performed by Police. It is not necessary for this Tribunal to await the outcome of the District Court appeal to take this matter into account and to make findings for the purpose of this administrative review, noting that in this instance the appeal is based on “whether the police have complied with their legislated obligations”. Refer to Beaman v Commissioner of Police, NSW Police Force [2018] NSWCATAP 12 at [64].

6. In 2006 Mr Dawidowicz shoplifted items from a Bunnings store. I reject his argument that he forgot the items were in his pockets as this explanation is not credible, given the items had been removed from their packets.

7. Mr Dawidowicz has a poor driving record, with about 35 driving offences recorded in the period 2002 to 2023. In addition to the offences described at (3) – (5), I note that Mr Dawidowicz was issued with a number of demerit point suspensions, including in 2005, 2006, 2008, 2009, 2018, 2022 (which was lifted). The most recent demerit points warning letter on his traffic record was in February 2023.

8. Mr Dawidowicz did not participate in four shooting activities and two hunting club events from 2017/2018 onwards. In the period 2008/2009 to 2022/2023 he completed the entire four shooting activities and two hunting club events in 2010/2011 only. In all other compliance periods from 2008/2009 to 2022/2023 Mr Dawidowicz failed to attend the required number of either shooting activities or hunting club events or both.

9. I find that Mr Dawidowicz did not inform the Commissioner that his genuine reasons could no longer be established and he did not do this within 14 days of that occurring.

10. I reject Mr Dawidowicz’s evidence that he had permission to shoot from a landowner as he provided insufficient evidence to support such a finding.

11. I reject any finding that Mr Dawidowicz was a primary producer at the time of his 2014 licence re-application as this is unsupported by the evidence.

5. I am satisfied that Mr Dawidowicz provided incorrect information on his firearms application forms as follows:

1. 2009 firearms licence application form: by failing to tick “yes” to the question set out above at [105] despite his convictions for shoplifting in 2006 and drug possession in 2008

2. 2014 firearms licence re-application form: by failing to tick “yes” to the question set out above at [110] despite his convictions for shoplifting in 2006 and drug possession in 2008 and 2011.

3. 2019 firearms licence re-application form: by ticking “no” to the question about whether he had a firearms licence suspended or revoked even though his licence was suspended and revoked until restored on internal review in 2013.

4. 2019 firearms licence re-application form: by failing to tick “yes” to the question set out at [117] above despite his convictions

13. I am satisfied that Mr Dawidowicz answered “no” to the question about his convictions in the 2014 and 2019 re-applications so that he would be granted a firearms licence without any problems and not have the applications knocked back by the Firearms Registry.

14. I make no factual finding about why it was that Mr Dawidowicz did not inform the Firearms Registry about his change of residential address on 5 February 2023. I note that his firearms licence was suspended at that time.

15. I find that Mr Dawidowicz was shot in the upper right arm when at his friend’s house on 2 August 2010.

16. I find that on 1 September 2022 Police executed a search warrant at a house owned by Mr Dawidowicz and found 295 cannabis plants.

Allegations regarding the supply of drugs and the Applicant’s knowledge about the grow house

146. I turned to the following allegations made by the Respondent:

1. Alleged supply of cannabis: The Respondent alleged that Mr Dawidowicz was involved in the supply of cannabis because he was found in possession of 12 smaller resealable bags in one of the three bags of cannabis found in his possession on 12 August 2011. Each smaller bag contained one gram of cannabis and Police state this is a common weight and form of packaging for the sale of cannabis at street level. I note Mr Dawidowicz’s evidence that this was how the cannabis was packaged up when he bought it. I note that Police did not charge Mr Dawidowicz with supplying prohibited drugs.

2. Alleged supply of cocaine: the Respondent alleged that because there was an intelligence report made by a member of the public the day following the 2010 shooting, on 3 August 2010, that Mr Dawidowicz had been selling “low quality” cocaine and so he was in fact involved in the supply of prohibited drugs. Ms Chenhall described the offenders who shot at the garage in which Mr Dawidowicz was on 2 August 2010 as Mr Dawidowicz’s “associates” and argued that the Tribunal ought to be extremely concerned if Mr Dawidowicz was to possess and use firearms. I note that Mr Dawidowicz’s lawyers argued that the fact this information was from an unidentified community source, it was unreliable and the shooter or an associate may have tried to spread this theory about the shooting for their own reasons.

3. Awareness of the grow house: The Respondent alleged that Mr Dawidowicz knew or pretended not to notice the fact that the house was being used as a grow house. Ms Chenhall argued this was the case because of: the short time between purchase of the house in May 2022 to September 2022, when the Police executed the search warrant; the fact the water bill was in Mr Dawidowicz’s name and sent to that address; and because Mr Dawidowicz made no contact with Police afterwards.

147. These allegations were not tested in any criminal trial and there were no criminal charges laid. They are allegations. For the purposes of this administrative review, these allegations are relevant to the question of whether or not the correct and preferable decision is that Mr Dawidowicz should be issued with a firearms licence. This is because if a person is involved in illegal activities of this nature, they could be found to be not a fit and proper person to be issued with a firearms licence without danger to public safety or the peace (section 11(3)(a)). The Tribunal has also considered that even if there is no evidence that the Applicant is personally involved in such activities, but they are associated with individuals engaged in criminal activities of this nature, they may come under pressure to make guns or ammunition available to such persons: refer to Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194 at [90].

148. I considered these allegations and given the serious nature of them and the lack of criminal charges, I considered that I should be guided by the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. I am not required or bound as a matter of law to follow these principles but I can use these principles as a guide: refer to Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at 97. The upshot of this is that I considered I must reach a level of actual persuasion and that to make any findings of fact about these allegations I need to reach a level of reasonable satisfaction, depending on the seriousness of the allegations: refer to Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [33]. I still apply the standard of proof on the balance of probabilities, taking into account the seriousness of the allegations. I am also required to consider logically probative evidence and not rely on mere suspicion or speculation: refer to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68; [1980] FCA 85.

149. I found the fact that the water bill was in Mr Dawidowicz’s name and sent to the address at which Police found the hydroponic cultivation of cannabis something that weighed strongly in fact of Mr Dawidowicz either knowing or deliberately ignoring the fact the house he owned was being used to cultivate cannabis. Coupled with the short time Mr Dawidowicz had owned the house, the informality of any lease and lack of bond this led me to the finding on the balance of probabilities, taking into account the gravity of the allegation, that Mr Dawidowicz knew, or pretended not to know but in fact knew, that his property was being used for the cultivation of cannabis. In reaching this conclusion I did not think the fact that Mr Dawidowicz did not contact Police following the execution of the search warrant was necessarily something that would weigh in favour of this finding as there might be other explanations for that.

150. I considered the fact that Mr Dawidowicz was found with 12 smaller resealable bags in one of the three bags of cannabis found in his possession on 12 August 2011. However, I did not reach a level of reasonable satisfaction in order to make a finding that Mr Dawidowicz was involved in drug supply. I reject that allegation.

151. I was not persuaded that Mr Dawidowicz was involved in the selling or dealing in cocaine as I consider the evidence from the unidentified member of the public on 3 August 2010 to be insufficiently reliable or able to be tested to reach a factual finding and I do not think this report alone is sufficiently probative to lead me to such a conclusion, even in the context of Mr Dawidowicz’s prior drug possession convictions. I also reject that allegation.

Assessment of the Confidential Statement and Confidential Material

152. [NOT FOR PUBLICATION]

153. [NOT FOR PUBLICATION]

154. [NOT FOR PUBLICATION]

155. [NOT FOR PUBLICATION]

156. [NOT FOR PUBLICATION]

157. [NOT FOR PUBLICATION]

158. [NOT FOR PUBLICATION]

Application of the law

Public interest

159. The Respondent contended that it would not be in the public interest for Mr Dawidowicz to be re-issued with a firearms licence.

160. The public interest is a broad concept and incorporates issues beyond character: Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

161. I found the whole of the evidence overwhelmingly led to the conclusion that it would be contrary to the public interest for Mr Dawidowicz to continue to hold a firearms licence: section 24(2)(d) of the Firearms Act 1996 and clause 20 of the Firearms Regulation 2017.

Improving public safety by ensuring there is a genuine reason for a licence

162. The Firearms Act 1996 seeks to improve public safety by “imposing strict controls on the possession and use of firearms”: section 3(b)(i). As part of this, those with firearm licences must prove a genuine reason for possessing and using firearms (refer to section 3(b) and (c)).

163. The findings I made about Mr Dawidowicz’s failure to meet the participation requirements for sport/target shooting and recreational hunting/vermin control whatsoever from 2017/2018 onwards means he could not establish a genuine reason for having a firearms licence from that point on. He also did not inform the Commissioner that he no longer had a genuine reason in breach of clause 15 of the Firearms Regulation 2017.

164. The failure to meet the participation requirements for at least six years for both genuine reasons and even longer for one of the two genuine reasons relied on is a matter that cannot be overlooked. As the Tribunal stated in Todororovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192 at [129]-[130] the legislation requires strict compliance and a period of five years in which Mr Todorovski failed to meet the requirements was considered by the Tribunal to be a “substantial dereliction that cannot be overlooked”. The same applies in the present case and I consider that it is contrary to the public interest for Mr Dawidowicz to continue to hold a firearms licence.

The role of the licensing and registration regime in improving public safety

165. The improvement of public safety is also achieved by the establishment of a licensing and registration scheme for firearms.

166. I concluded that it cannot be in the public interest that Mr Dawidowicz to continue to hold a firearms licence because he provided incorrect information on his licence application forms about his convictions on three occasions. He conceded that he did so on two of those applications because it wanted to continue to hold a licence without any problems or without having the application knocked back.

167. According to Kogiasv Commissioner of Police [2020] NSWCATAD 297 at [114] the functioning of a proper system of firearms licencing “depends on applicants providing true and correct information in a comprehensible manner”. Refer also to Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18].

168. The provision of incorrect information by the Applicant undermines the ability of the Commissioner to effectively assess Mr Dawidowicz’s applications for a firearms licence: Cramp v Commissioner of Police, NSW Police Force [2023] NSWCATAD 251 at [95]. It also damages public confidence in the administration of the licensing system.

Fit and proper person

169. The Commissioner contended that Mr Dawidowicz is not a fit and proper person and should therefore not have his firearms licence restored.

170. The meaning of fit and proper person is not defined in the Firearms Act 1996. The expression “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”: Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at [36]. According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression ‘fit and proper person’ gives a decision-maker a very wide discretion and it involves three things: “honesty, knowledge and ability” to execute the office or vocation (at [9]).

The need to ensure public safety and assessment of risk

171. Whether or not an applicant for a firearms licence is a ‘fit and proper’ person is to be considered in the statutory context of whether the person can be trusted to possess firearms without danger to public safety or the peace (section 11(3)(a) of the Firearms Act 1996). The question of fitness and propriety must be considered in the context of the principles and objects of the Firearms Act 1996, which squarely rests on the need to ensure public safety (refer to section 3(1)(a) of the Firearms Act 1996 and Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).

172. Previous cases have addressed the question of how the Tribunal is to assess risk to public safety. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 Deputy President Hennessy said:

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.

173. In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said:

The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb’s licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of 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.

174. According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”.

175. Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase “virtually no risk” “should not be understood as a judicial gloss” on the plain meaning of the statute and the decision-maker should apply the relevant test by “exercising a judgement based on all the evidence”: [8] and [10].

Criminal and traffic offending

176. The circumstances of Mr Dawidowicz’s criminal offending are that he had prior convictions for drug possession. He also has a poor driving record over a lengthy period.

177. I am concerned that Mr Dawidowicz sought to evade Police in 2004 when riding the trail bike on the road and was convicted of ‘drive vehicle recklessly/furiously or speed/manner dangerous’. His licence was suspended for 12 months. In more recent years he engaged in drink or drug driving in 2011, 2019 and 2023. I am also concerned that in respect of the mid-range drink driving conviction in 2019, Mr Dawidowicz did not stop when directed by Police.

178. I agree with the Respondent that Mr Dawidowicz’s driving offences reflect a disregard for public safety, his own safety and also for laws designed to ensure public safety: refer to O’Brien v Commissioner of Police [2022] NSWCATAD 259 at [58].

2010 shooting and knowledge of the grow house

179. I must also consider the fact that I am satisfied that Mr Dawidowicz must have known about the grow house and that he was the victim of a shooting in 2010. These aspects give rise to the possibility that Mr Dawidowicz has associations with those involved in criminal activities. These aspects of the case cannot be disregarded and give rise to concerns if Mr Dawidowicz was to be re-issued with a firearms licence.

180. [NOT FOR PUBLICATION]

181. I agree with the comments of the Tribunal in Adams v Commissioner of Police, NSW Police Force [2017] NSWCATAD 194 at [90] that even if there is no evidence that an applicant has “has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities” he could “come under pressure to make guns or ammunition available” to others involved in criminal activities if he continues to associate with them. In the present case there is no clear evidence that Mr Dawidowicz himself has been directly involved in drug cultivation, but there is evidence to show he had knowledge of those activities occurring at his house.

182. It is very clear on the evidence before me that Mr Dawidowicz is not a fit and proper who, in the wording of section 11(3)(a), can be trusted to have possession of firearms without danger to public safety or to the peace.

ORDERS

1. The decision made by the Commissioner of Police on 16 May 2023 to revoke Mr Dawidowicz’s Category AB firearms licence is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 March 2025