Douglas v Commissioner of Police

[2022] NSWCATAD 252

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Douglas v Commissioner of Police [2022] NSWCATAD 252

Hearing dates:

3 June 2022

Date of orders:

27 July 2022

Decision date:

27 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – revocation of licence –fit and proper – public interest – requirement to notify change of address

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

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

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156

Hill v The Commissioner of Police [2002] NSW ADT 218

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

Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127

Joseph v NSW Commissioner of Police [2017] NSWCA 31

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Lukas v Commissioner of Police [2021] NSWCATAD 268

May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Sobey v Commercial and Private Agents Board [1979] 22 SASR 70

Thomas v Commissioner of Police, NSW Police Force [2018] NSWCATAD 202

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

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

Category:

Principal judgment

Parties:

Michael Douglas (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Maddocks Lawyers (Respondent)

File Number(s):

2022/00063041

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Michael Douglas (“the Applicant”) for review of the decision by a delegate of the Commissioner of police (“the Respondent” or “the Commissioner”) to revoke his licence under the Firearms Act 1996 (”the Act”)

2. The Commissioner determined to revoke the Applicant’s category AB licence on the basis that the Commissioner was satisfied that it is not in the public interest for the Applicant to continue to hold the licence.

3. It is not in dispute that of the Applicant does not have a criminal record nor does he have a significant record of traffic offences. The determination was based on a long history of domestic issues that has brought the Applicant to the attention of police. Those incidents concerned four different partners.

4. I will limit the discussion of the incidents in order to protect the privacy of the individuals concerned.

5. The Applicant has been the subject of several interim Apprehended Violence Orders (“AVOs”) however each of those orders has either been withdrawn or set aside after hearing.

6. The Respondent’s position is that:

• the Applicant has been the subject of a number of reports from former female partners regarding domestic disputes over a 12-year period;

• the Applicant’s conduct has resulted in four criminal charges and five interim AVOs which were either dismissed, withdrawn or revoked;

• an allegation was made to Police in 2017 that the Applicant threatened to physically harm his daughter;

• the applicant has failed to report changes of address to the commissioner of police as required by section 69 of the Act.

7. The Respondent contends that the Tribunal could not be satisfied that the Applicant is a fit and proper person to hold a firearms licence or that it is in the public interest for him to do so.

Background

8. The Applicant has held a Category AB firearms licence since 2010 for the genuine reason of recreational hunting/vermin control. The licence was reissued in December 2015. The Applicant applied to have his firearms licence reissued In September 2020, however the licence was revoked in October 2020 due to concerns of the Firearms Registry that public safety would be at risk if the Applicant continued to have access to firearms.

9. The Respondent's decision to revoke the Applicant's licence was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

10. Each of the parties has provided written submissions which address the background to the determination. The following is not in dispute:

• In 2008 the Applicant was charged with the offences:

1. stalk/ intimidate intend fear or physical/ mental harm;

2. and common assaults.

• In 2008 the applicant was subject to three interim AVOs.

• In 2008 the Applicant was charged for contravening prohibition/restriction in AVO.

• In 2020 the applicant was subject of an Interim AVO that was revoked.

11. The Applicant was not convicted in relation to any of those charges.

12. The internal review reasons provide the following outline in relation to that history:

“That in 2008, police were caused to intervene in domestic disputes with your former wife (Female 1). You were ultimately charged on two separate occasions where you were either found not guilty, or the charges were withdrawn. During that time there were three separate interim Apprehended Violence Orders (AVOs) in place in which you were named. Each of these were subsequently revoked. In the most serious incident, it had been alleged that you punched your then wife in the leg, and that you held a knife over your baby and made comments that caused your wife to fear you would harm your child. Investigating Police noted in their report at the time that, "''Police have serious concerns for the safely and welfare of the child, as the use of the knife in the close vicinity of the baby shows a high degree of disregard.

That on 21 July 2013, it was reported to Police that you were involved in a verbal argument with an ex-partner (Female 2). No enforcement action was warranted.

That on 28 September 2016, an Interim AVO was issued in the Rockhampton Magistrates Court naming another female (Female 3). The Interim AVO was subsequently revoked.

That on 26 February 2017, a child at risk report was made to police naming your daughter.

That on 21 May 2020, an Interim AVO was issued in the A.C.T. Magistrates Court naming another female (Female 4). The Interim AVO was subsequently revoked on 6 July 2020 where you entered into an undertaking not to engage in certain conduct for a twelve-month period.

That you have residential addresses recorded in Queensland (2016), and the A.C.T. (2019). None of these changes of residential address have been reported to the Firearms Registry per legislative requirements. To obtain/retain a NSW firearms licence you must be a NSW resident.”

13. The Applicant has denied the allegations underlying each of the AVOs and he has provided an explanation in regard to the issue concerning his residential address.

The issue for determination

14. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether or not the Applicant is a fit and proper person to hold a licence under the Act and whether or not it is contrary to the public interest for the Applicant to do so.

Applicable legislation

15. Section 9 of the Administrative Decisions Review Act 1997 ("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.

16. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to revoke a firearms licence. This application is made under section 75 of the Act and the ADR Act.

17. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

18. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

1. The underlying principles of this Act are:

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

   (b)   to improve public safety:

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

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

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

   19. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

20. Section 11 of the Act provides for the issuing of licences. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

21. Section 11(3)(d) of the Act provides that a licence must not be issued unless the Commissioner is satisfied that the person is, or about to become, a resident of NSW.

22. Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

23. Section 24(2)(c) of the Act provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

24. In Thomas v Commissioner of Police, NSW Police Force [2018] NSWCATAD 202, which concerned a decision to impose a firearms prohibition order, the Tribunal found that the applicant was not a fit and proper person. Senior Member Simon stated at paragraph [32]:

… Both his significant relationships have resulted in provisional or interim apprehended violence orders for the protection of his partners. While these were only provisional or interim, they reflect at very least an inability for Mr Thomas to extract himself from relationship that will result in dispute.

25. In Thomas the Tribunal considered the fact that the applicant’s relationships resulted in provisional or interim apprehended violence orders for the protection of his partners was to be a relevant factor in finding found that the applicant was not a fit and proper person to possess firearms.

26. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations. 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.

27. Section 69 of the Act requires the holder of a firearms licence to notify the Commissioner if there is any change to the licensee’s place of residence within 7 days of the change.

28. The Tribunal’s function in relation to applications before it is set out in section 63 of the ADR Act:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)    any relevant factual material,

   (b)   any applicable written or unwritten law.

3. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

4. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

   29. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.

   30. The Tribunal must exercise its discretion in determining this review 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].

   31. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant’s licence to possess firearms is returned to him.

   32. In Joseph v NSW Commissioner of Police [2017] NSWCA 31 the Court of Appeal stated at paragraphs at [62] - [64]:

5. Before this Court, Mr Joseph relied upon the Appeal Panel decision in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], which is in the following terms:

   “20   We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.”

6. When read as a whole, this paragraph does not assist Mr Joseph. Its tenor is consistent with what I have said above, in particular in its affirmation that there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence.

7. In the present case, the hearsay evidence of a police prosecutor’s view that he did not have direct evidence sufficient to discharge the criminal onus in relation to one element of the relevant offences did not detract from the substantial weight of the other evidence of the 2007 events. First, the only evidence led before the Tribunal as to whether the relevant offences could be proved (as distinct from the hearsay assertions of the police prosecutor about his belief) was Detective Harris’ statement that there was direct evidence of Mr Joseph’s knowledge. Secondly, even in the absence of that evidence, the other evidence of the 2007 events was relevant to the Commissioner’s decision on Mr Joseph’s licence application because it at least raised a strong suspicion that Mr Joseph had been involved in dishonest activities.

   33. It is clear from Joseph v Commissioner of Police, New South Wales Police Force that, irrespective of whether charges were proved beyond reasonable doubt, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed. It is the conduct rather than the conviction that is of concern to the Tribunal.

   34. The Tribunal can determine itself, on the balance of probabilities, the conduct of an applicant and whether it justifies refusal of a licence. To find the conduct occurred is to not make a finding of criminal guilt. It would simply be a finding of conduct that is not compatible with the privilege of a licence.

The Public Interest

35. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

1. The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

   36. The “public interest” allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

   37. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

   38. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

   39. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

   40. 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. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Fit and proper person

41. The power to revoke a licence under section 24(2)(c) of the Act arises if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

42. The Act does not include a definition of "fit and proper", however, the Tribunal has considered the issue on a number of occasions. The consideration of a person's fitness takes account of the activities that the person will undertake.

43. In Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ stating at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ...”

44. The High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 provides further guidance as to the meaning of a “fit and proper person”. In that case Toohey and Gaudron JJ stated (at page 380):

The expression “a fit and proper person”, 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to 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 an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question.

45. Their Honours further stated at page 388:

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

46. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper”:

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 evolving 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.

47. In Barlow V Commissioner of Police, NSW Police Force [2003] NSWADT 254, Judicial Member Higgins J stated that when considering if an applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace.

The material before the Tribunal

48. The Applicant relies on his own evidence. He provided a statement and a significant amount of material relating to the various issues that have been raised by the Commissioner. This includes material that was presented in court in regard to prosecutions and AVOs and number of character references. He attended the hearing, gave evidence and was cross-examined.

49. The Commissioner relies on material filed pursuant to section 58 of the ADR Act and written submissions. Ms Norquay, the Respondent’s solicitor also made oral submissions.

The Respondent’s case

50. As noted, the Respondent contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is in the public interest for him to do so.

Concerning domestic behaviour

51. The Respondent notes that the most significant factor behind the revocation of the Applicant’s licence is the frequent domestic violence incidents involving him and his ex-partners. The Respondent holds serious concerns regarding the numerous allegations that have been made by four different ex-partners over a number of years and that these have resulted in criminal charges and interim AVOs. The Respondent contends that the Applicant cannot be trusted to have possession of firearms without presenting a danger to the public safety or peace.

52. The Respondent does not dispute that the Applicant was not found guilty of the charges and the AVOs expired or were dismissed. Nevertheless, the Respondent notes that the Applicant has engaged in a pattern of concerning domestic behaviour with several female partners over a 12 year period.

53. Ms Norquay submitted that there is a general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. She referred to the view expressed in Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 at paragraph [56] where the Tribunal observed in the context of domestic violence:

Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

54. In light of the Applicant’s history of being involved in domestic disputes with partners, and the possibility of future disputes, the Respondent submits that the Tribunal could not be satisfied that there is no risk to the public safety if the Applicant were to be issued with a firearms licence.

Failure to notify of changes to place of residence

55. The Respondent contends that the Applicant has repeatedly breached section 69 of the Act by failing to notify the Commissioner of changes to his place of residence within 7 days. Pursuant to section 11(3)(d) of the Act the Applicant would be ineligible to be issued a NSW firearms licence if he resided outside of NSW.

56. The Respondent submits that this provision is relevant, particularly for any person who resides out of state, as a licence must not be issued unless the Commissioner is satisfied that the person is a resident of NSW. The Respondent further submits that it is also significant if, as in this case, the address provided by a licensee is the same address where firearms are stored.

57. The Respondent contends that during the period that the Applicant was licensed to possess and use firearms, he did not notify the Commissioner of numerous changes to his residential address. There is no record of the Applicant contacting the NSW Firearms Registry to make enquiries regarding his address. Ms Norquay noted that:

• Between 28 October 2014 and 22 October 2015, the Applicant’s residential address was recorded at Peak Hill NSW;

• Between 22 October 2015 and 19 February 2016, the Applicant was recorded at a different Peak Hill residential address;

• Between 19 February 2016 and 17 March 2022, the Applicant’s residential address was recorded at Tullamore NSW

• In February 2017 Police were informed that the Applicant was residing in Canberra;

• Since 17 March 2022, the Applicant’s address was updated to Springdale NSW and then to Young NSW;

• A decision of Special Magistrate Hunter OAM referred to the Applicant residing in the ACT;

58. Ms Norquay also noted that in these proceedings the Applicant stated that he resided in Queensland and the ACT for work purposes, whilst maintaining residency in NSW.

59. The Respondent submits that the inconsistency in the evidence provided by the Applicant, identification of residences outside of NSW by Queensland, ACT and NSW Police, and misunderstanding of the Applicant’s obligations as a firearms licence holder demonstrates that it is not in the public interest for the Applicant to hold a firearms licence.

Risk to public safety

60. Ms Norquay noted that Applicant’s indication that his employment has been affected by the revocation of his firearms licence. She submitted that the Tribunal has held that a decision maker should not shy from exercising discretion adversely to an individual merely on the grounds that the applicant may suffer hardship and/or inconvenience: Hill v The Commissioner of Police [2002] NSW ADT 218 at paragraph 22.

61. Any firearms licence is a privilege, not a right, and the continued enjoyment of that privilege is conditional upon the overriding need to ensure public safety. In considering whether an applicant should retain their privilege to hold a firearms licence, the Tribunal has held that where there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: May v Commissioner of Police, New South Wales Police Service [2001] NSWADT 82 at paragraph 54.

62. The Respondent submits that the Tribunal is required to look at the Applicant’s conduct as a whole. Consideration of the Applicant’s numerous involvements in domestic disputes which have resulted in criminal charges and lAVOs; and breach of section 69 of the Act, cannot result in a conclusion that there is virtually no risk to public safety if the Applicant were to have access to firearms.

63. For these reasons, the Respondent submits that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant’s firearms licence.

The Applicant’s case

64. The Applicant contends that he is a fit and proper person to hold a firearms licence and that it is not contrary to the public interest for him to do so.

65. The Applicant is currently married and he shares young twins with his wife. His wife has provided a statement in support of his application.

66. The Applicant does not dispute that he was the subject of the charges and AVOs referred to above. However, he stated that these resulted from false accusations and malicious intent by previous partners in an attempt to hurt him mentally and financially.

67. The Applicant explained that in 2008 he commenced family court proceedings following the breakdown of a relationship because his access to his daughter was restricted. He stated that the accusations against him in relation to his daughter, who was only two weeks old at the time of the separation, were not made until two months after the alleged incident. He stated that his ex-partner sought AVOs in an attempt to influence the family court proceedings.

68. He stated that there was a history of verbal arguments and harassment towards him and his family from his ex-partner. He provided statements from his sister, Erin Dean, which explains the interactions between his family and his ex-partner and how the ex-partner had harassed Ms Dean.

69. He stated that all of the charges were dismissed in court due to the lack of evidence. His ex-partner was found to have given false allegations and misleading information.

70. He further submits that no weight should be given to the matters that were recorded in 2008 due to the substantial amount of time that has passed.

71. In relation to an incident in July 2013 in which the Applicant was reportedly involved in a verbal argument with another ex-partner, he explained that:

This incident occurred when my partner at the time lit up a bong whilst in my car. I pulled over and told her to get out, as I don't want anything to do with illegal drugs. I drove off and left her on the side of the road and went back to the house where I collected my belongings and left.

Several weeks later, she kept contacting me on my phone on a private number. I sought help from the police, but they told me to delete her number. Even though she was calling on a private number. This wouldn't stop her from calling me again on a private number. The second time I tried to seek help from the police, she called my phone whilst I was at the police station. I asked the police officer at the time to listen to the call when I answered it. I confirmed it was her voice pretending to be a police officer. The constable at the time interjected in the phone conversation and told her that it was a serious offence to impersonate a police officer. I have had no contact with her since then.

72. In relation to an incident in September 2016 in which an Interim AVO was issued in the Rockhampton Magistrates Court naming another ex-partner he explained:

I was at Rockhampton visiting her brother where the relationship came to an end due to her being malicious. I was accused of stuff from her. At the time I left, her two brothers were there and witnessed everything that happened which they provided in their statement to the police at the time. [The ex-partner's] statement shows inconsistencies that don't align with her brothers' statements. … I was not violent towards her at all and we only verbally argued.

73. The Interim AVO was subsequently revoked.

74. In February 2017, a child at risk report was made to police naming the Applicant’s daughter. In relation to that incident he explained:

In February 2017, my vehicle was involved in an accident rendering it undriveable. This meant that I missed being able to see my daughter on two separate occasions for the month of February. I find these allegations to be false as I wasn't able to see my daughter that month and I was always with other family members when I had visitation rights with her. I was never notified by Police about this matter. Instead [the ex-partner's] solicitor Mathews and Williams, contacted me via letter on the 10th March ...

I would like the tribunal to also consider if my daughter was in such fear of me and the accusation of a whip. Why would she be eager to watch whip cracking at the Parkes rodeo on the 4th March 2017 with my parents that she requested to go to and wanted to sit as close as possible to the display which my parents denied as they didn't want her to get accidentally hurt. I have provided my parents' statements ... The Parkes rodeo on the 4th March 2017 was the last time that my family got to see or spend any time with Caitlin. We were all denied visitation after this by [the ex-partner] via a phone call to my parents and my home at the time in Tullamore. Even though I have family court decisions granting me access to my daughter and visitation rights every second weekend. I have not continued to pursue these rights to see my daughter as it has taken an emotional, mental and financial toll on myself and my family and I didn't want to continue to cause more stress to my family. The hardship that [the ex-partner] has put myself and my family through has been continuous over the years especially whilst we were going through family court proceedings. I have included some letters I received over the years … and a statement I completed for the 2008 court proceedings … to help the tribunal see the type of person that [the ex-partner] was and what I had to deal with on a regular occasion.

75. In May 2020, an Interim AVO was issued in the A.C.T. Magistrates Court naming another ex-partner. The Interim AVO was subsequently revoked in July 2020 when the Applicant entered into an undertaking not to engage in certain conduct for a twelve-month period. In relation to that issue he explained:

The Matter in 2020 was again an ex-partner that was unhappy with the breakdown of a relationship and was out to cause trouble. … [T]he complete court findings and the hearing transcript, where again there was misleading information and found to be holes in the story of the accuser [the ex-partner], the Special Magistrate Hunter OAM states:

"122.   This is a word on word matter. That is not unusual. I note there was the evidence given by the complainant. Having reviewed the evidence and my notes taken at the time she gave evidence, I formed the view that she appeared to be an evasive witness, particularly when questioned as to her motive to be untruthful. I also found some of her evidence internally inconsistent.

…

139.   I find that the evidence given by [the ex-partner] was disjointed, at times implausible and was not corroborated by the evidence.

…

142.   Even if I was satisfied as to her account, I would need to reject the Defendant's evidence of denial. I note that the Defendant suggested a motive for her to lie. That motive was about the house, wanting to be in a relationship with him and the like. I also note that [the ex-partner] was rather reluctant to recognise or accept that motive, despite evidence to the contrary.

143.   Having rejected the evidence, particularly as to how the alleged application (or attempt) application of force was made I do not need to consider the interview with the Defendant. However, I very carefully scrutinised the Defendant's version and found his version credible."

From the first instance of the 2020 matter I insisted my innocence in regards to the charge of violence being a choke. During the whole proceedings I was truthful and the special magistrate Hunter OAM found my version to be credible as it was the truth. I also received compensation for the trouble this matter caused. I later entered into an agreement for 12 months after the court decision to ensure that [the ex-partner] left me alone as I didn't want any further harassment.

…

I have previously explained this matter above, and have provided evidence of the courts decisions and the hearing transcript which both show that [the ex-partner] was misleading and the police didn't conduct a proper investigation which would have led to this matter being resolved before coming to court. I later entered into an agreement for 12 months after the court decision as I was accused of damaging [the ex-partner] property. The sheriff at the courthouse that I was summoned to stated there was no grounds to stand on and it was best to make temporary orders to protect me and her and that it would not affect my gun licence at all. [The ex-partner] also stated she wasn't worried about me having a gun licence.

76. The Applicant submitted that these matters do not show a pattern of violence or a risk to the public. It shows that he has made poor choices in his relationships and as a result of the breakdown of these relationships has been the victim of harassment and malicious intent by his ex-partners.

77. In relation to the Respondent’s contentions regarding the Applicant’s residential addresses he stated:

Whilst I stayed in QLD and the ACT for the purpose of work, this was not my residential address. I still maintained my residency at … Tullamore. Each time that I worked out of state I contacted NSW Firearms Registry and sought clarification if I needed to change my address. I was informed that as the work was only temporary and if I returned to my place of residence in NSW every 14 days then that is ok. In regards to court matters, I was informed to follow the judge’s orders and if there was no conviction then the gun licence would not be affected. A judge also said that why would it affect your gun licence if I have not convicted you of the charges.

78. In summary, the Applicant stated that:

• He has never been violent to any woman or child;

• He has made poor choices in partners that have led to his being harassed and falsely accused;

• He is happily married now. His family is his world and he just wants to provide for them and be the best father he can be.

• He has been model citizen, previously working for fire and rescue and he would like to have the opportunity to return to this career;

• The revocation of his gun licence has inhibited his opportunities for work;

• Due to his gun licence being revoked he was unable to humanely putt a horse down. Instead, he had to get a vet to euthanize the horse putting further stress on his family financially.

79. He contends that he is not a violent person or a risk to public safety and seeks the reinstatement of his firearms licence.

Discussion

80. This is a matter in which there is clear evidence of a history of complaints and allegations in regard to the Applicant’s conduct. However, the Applicant has provided plausible explanations for each of the incidents that the Respondent has raised. The Respondent has not provided evidence to contradict the Applicant’s evidence and his evidence was not varied in any material sense at the hearing.

81. It is clear from Joseph v Commissioner of Police, New South Wales Police Force that the Tribunal could revisit the conduct said to ground the charges brought against the Applicant to determine whether the conduct justifies the revocation of the licence. However, in the circumstances I have no basis on which to do so.

82. In the circumstances, I accept the Applicant’s evidence. I accept that the history reflects the Applicant’s poor relationship choices. I am not satisfied that the history of complaints and charges leads to the finding that the Applicant is not a fit and proper person to hold a firearms licence.

83. However, the evidence before me suggests that the Applicant has not complied with his obligations under section 69 of the Act. I am concerned that he does not have sufficient knowledge of his obligations under the Act.

84. As the Tribunal noted in Lukas v Commissioner of Police [2021] NSWCATAD 268, the public interest requires that licensees are aware of and comply with the legislative requirements. Public safety requires that licensees maintain their level of understanding of their obligations as a licensee.

85. In my view, the Applicant should not be allowed to hold a licence until he is able to satisfy the Commissioner that he has sufficient knowledge and understanding of his obligations particularly in regard to the requirement to notify change of address. This would require that he undertake a firearms safety course.

86. As I have noted, I have no concerns in regard to the Applicant’s fitness and propriety and if he is able to satisfy the Commissioner that he has completed a firearms safety course and if he reapplies for the licence, the Commissioner may adopt a different view to that taken in regard to this matter.

87. If the Applicant’s employment has been affected by the revocation of his firearms licence he may also wish to reconsider whether a licence for the genuine reason of recreational hunting/vermin control meets his requirements.

88. However, on the material that is before me, I am not satisfied that it is in the public interest for the Applicant to hold a licence under the Act until he has completed a firearms safety course. That being the case, the correct and preferable decision is to affirm the decision to refuse the licence application.

Order

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 27 July 2022