FD and COMMISSIONER OF POLICE - [2024] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION:   FD and COMMISSIONER OF POLICE [2024] WASAT 93
MEMBER:   MS N EAGLING, MEMBER
HEARD:   10 AND 31 JULY 2024
DELIVERED          :   6 SEPTEMBER 2024
FILE NO/S:   CC 414 of 2023
BETWEEN:   FD
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearms - Revocation of firearms licence - Fit and proper person - Breach of Conduct Agreement Order - Withdrawn criminal offences - Photographs of children with firearms

Legislation:

Criminal Code (WA), s 313(1)(a)
Criminal Investigation Act 2006 (WA), s 128(1)
Firearms Act 1973 (WA), s 8(1)(n), s 11, s 11(1)(c), s 11A, s 11(2), s 11(3), s 11(3)(a), s 11(3)(a)(iv), s 11(4), s 11(5), s 22(2), s 23(9)(b), s 23(9)(d)(i)
Firearms Act 2024 (WA), s 4, s 5, s 9(1), s 9(4), Pt 1, Pt 16
Restraining Orders Act 1997 (WA), s 10(1), s 10(2), s 10H, s 43, s 61
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 32, s 32(2), s 32(6)(c), s 61(4), s 62

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr M Ryan
Respondent	:	Mr G Y Coffie

Solicitors:

Applicant	:	Mortlock Ryan & Co
Respondent	:	WA Police Legal Services

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Di Chiera and Commissioner of Police [2020] WASAT 145
McGee v Chitty [2011] WASCA 125
Minitti v Commissioner of Police [2010] WASCA 198
O'Rourke v Miller (1985) 156 CLR 342
Polizzi v Commissioner of Police [No 2] [2017] WASC 166
Punter v Commissioner of Police [2020] WASAT 142
Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109
Roongrote and Commissioner of Police [2018] WASAT 115
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By application dated 29 March 2023, the applicant applied to the Tribunal for a review under s 22(2) of the Firearms Act 1973 (WA) (Act) of a decision made by the Commissioner of Police (Commissioner or respondent) to revoke his firearms licence on the basis that he was not a fit and proper person within the meaning of s 11(3)(a) of the Act.
The sole reason referred to by the respondent when making his decision was that an interim Family Violence Restraining Order (FVRO or VRO) was made against the applicant, which was subsequently made into a Conduct Agreement Order (CAO).
At the hearing the respondent submitted that the Tribunal should find that the applicant was not a fit and proper person to hold a firearms licence for the following reasons:
(a)he had entered into a CAO which he had subsequently been convicted of breaching on one occasion;
(b)a history of 'family violence' - specifically that he had been charged with five offences involving family violence; and
(c)a lax attitude to firearms safety on the basis of photographs which showed himself and his children holding, or in close proximity to, firearms.
The applicant's position at the hearing was that:
(a)a CAO by its nature does not contain any admission of fact nor any finding by a court that there are grounds for making a FVRO. Further, the breach of the CAO of which he was convicted was a technical breach not involving any allegation or threat of violence;
(b)four of the criminal charges were withdrawn by police prior to trial and he was acquitted of the remaining charge; and
(c)the photographs do not demonstrate a lax attitude to safety but rather demonstrate the applicant was teaching his children about the safe handling of firearms.

Issues

The only issue before the Tribunal is whether the applicant is a fit and proper person to hold a firearms licence.
The respondent did not dispute that the applicant had a genuine reason to possess his firearms licence (s 11A of the Act) and the Tribunal is satisfied on the evidence before it that the applicant does have a genuine reason to possess his firearms licence.[1]
[1] As the Tribunal noted in Di Chiera and Commissioner of Police [2020] WASAT 145 at [46] because the Tribunal undertakes a review hearing de novo, it must in reaching its decision, be satisfied of the applicant's eligibility and suitability to hold a firearms licence, taking account of any relevant criteria under the Act in respect of which the applicant bears a 'practical onus'. Also see Wignall and Commissioner of Police [2006] WASAT 206at [279] - [280]
Whether the applicant is a fit and proper person involves a consideration of the following questions:
(1)Which legal principles the Tribunal must apply in determining whether the applicant is a fit and proper person and to what extent the provisions of the Firearms Act 2024 (WA) (2024 Act) are relevant?
(2)What is the impact, if any, of the applicant entering into the CAO on whether he is a fit and proper person?
(3)What is the impact of the applicant's conviction for the breach of the CAO on whether he is a fit and proper person?
(4)To what extent should the Tribunal have regard to the withdrawn criminal charges and to the charge in relation to which the applicant was acquitted when determining whether he is a fit and proper person?
(5)What inferences or conclusions should be drawn from the photographs depicting the applicant and his children holding, or in close proximity to, firearms?

Legal principles

Legislative regime

The purpose of the Act is to protect the public: McGee v Chitty [2011] WASCA 125 per Mazza JA at [31].
Section 11(1)(c) of the Act states that the respondent cannot issue a licence under the Act to a person if the Commissioner is of the opinion that the person is not a fit and proper person to hold the licence.
Section 11 of the Act outlines the considerations which the Commissioner may take into account in deciding whether a person is a fit and proper person to hold a licence, including certain circumstances which constitute sufficient grounds for forming such an opinion.
Relevantly, the Commissioner has sufficient grounds for forming an opinion that a person is not a fit and proper person to hold a licence if the Commissioner is satisfied that at any time within the period of 5 years before the application, the person was the subject of a violence restraining order (VRO) made against the person: s 11(3)(a)(iv) of the Act.
The term 'violence restraining order' is defined in s 11(4) of the Act for the purposes of s 11(3) of the Act as follows:
violence restraining order means a judicial order imposing on the person against whom the order is made restraints on the person's lawful activities and behaviour to prevent the person —
(a)committing an offence against the person under Part V of The Criminal Code, other than Chapters XXXIV and XXXV; or
(b)behaving in a manner that could reasonably be expected to cause fear that the person will commit such an offence,
or a similar order made under the laws of any place other than this State.
For reasons discussed later in this decision, in my view a CAO falls within the definition of a VRO in s 11(4) of the Act. However, while a CAO has the same force as a VRO, the circumstances in which they are made are materially different. I will return to this issue later in my reasons.
Although entering into a CAO within the last 5 years is therefore a sufficient basis for the Commissioner to form the opinion that an applicant is not a fit and proper person, the Act provides that despite the existence of a sufficient ground in s 11(3), the Commissioner may form the contrary opinion: s 11(5) of the Act. Section 11(3) therefore informs, rather than limits, the exercise of the respondent's discretion: Di Chiera and Commissioner of Police [2020] WASAT 145 at [9] (Di Chiera).
Section 11(2) of the Act states that where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold a licence.
This application falls within the review jurisdiction of the Tribunal and therefore the Tribunal is to review the decision by way of a hearing de novo for the purposes of making the correct and preferable decision based on the information and the evidence before the Tribunal at the time of review: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On review, the Tribunal may affirm, vary or set aside the reviewable decision and, in the latter case, may substitute its own decision to arrive at the correct and preferable decision: s 29 of the SAT Act.

Case law in relation to fit and proper

In Minitti v Commissioner of Police [2010] WASCA 198 (Minitti) Pullin JA, with whom Newnes JA and Mazza J agreed, stated at [11] in relation to the meaning of fit and proper in the context of the Act as follows:
… The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348.
In relation to prior criminal convictions, Pullin JA stated at [13] that:
… The requirement that the person who is to be granted a firearms licence be a fit and proper person goes arm in arm with the consideration of public safety. The nature and circumstances of the criminal convictions will be a matter for assessment by the tribunal[.]
In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996), at pp 7 - 9, Her Honour Justice Wheeler outlined at pp 7 - 9 a number of factors which made convictions more serious in the statutory context:[2]
(a)they occur in the course of or relate to the carrying out of the occupation (carried out under the licence);
(b)where they are offences of dishonesty, broadly understood;
(c)they occur while the person is the holder of a licence under the Act; and
(d)whether they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.
[2] In that case the statutory framework was whether a person was fit and proper to be licensed as a security agent under the Security and Related Activities (Control) Act 1997 (WA).
This Tribunal has previously held that it considers the commission of any incident of family violence to be a matter of utmost seriousness, and of such a character as to be generally incompatible with the possession by the perpetrator of a firearm: Di Chiera at [69]; Punter v Commissioner of Police [2020] WASAT 142 (Punter) at [66].
At the hearing of this matter, counsel for both parties referred to numerous previous cases of this Tribunal. However, as was pointed out by the Tribunal in Punter at [61], although considering analogous cases may be helpful, the Tribunal must ultimately exercise its broad discretion anew in the circumstances of each particular matter.

Firearms Act 2024 (WA)

During the hearing, the respondent referred to the 2024 Act. Parts 1 and 16 of the 2024 Act have commenced (being the Preliminary and Savings and transitional parts).
The respondent referred the Tribunal to s 4 of the 2024 Act and specifically to the following 'Principles and Objects' of the Act:
Section 4(1) in Part 1 of the 2024 Act provides that the principles of 2024 Act are:
(a)there is an overriding need to ensure public safety in connection with the possession and use of firearms in the community;
(b)the possession and use of firearms is a privilege that is always conditional on the overriding need to ensure public safety;
(c)public safety can be ensured by strict controls to secure the safe and responsible possession and use of firearms in the community.
Section 4(2) in Part 1 of the 2024 Act provides, relevantly, that the objects of the 2024 Act are:
(a)to improve public safety by ensuring the safe and responsible possession and use of firearms;
…
(c)to minimise the risk of persons becoming victims of crimes that involve the use of firearms; …
(e)to prevent access to firearms by persons who pose a risk of violence, family violence or intimidating behaviour; [and]
(f)to prevent access to firearms by persons who pose a risk of misuse of firearms.
The respondent also referred the Tribunal to s 4(3) of the 2024 Act which states:
[p]ersons performing functions in or in connection with the administration of this Act (including when constituting, or as a member of, a court or tribunal) must have due regard to the principles and objects of this Act.
The respondent further referred to the definitions of 'disqualifying offence' and 'disqualified person' in the 2024 Act. It appears that the applicant may, when the operative parts of the 2024 Act commence, be a person who is disqualified from holding a firearms licence for a period of time.[3] However, as discussed further below, s 9(1) of the 2024 Act defines a disqualified person as, relevantly, being a disqualified person 'during the period prescribed by the regulations'. No regulations have yet been promulgated.
[3] The term 'disqualifying offence' is defined in s 5 of the 2024 Act under paragraph (a) as 'a serious offence as defined in the Criminal Investigation Act 2006 section 128(1)'. A serious offence is defined in s 128(1) of the Criminal Investigation Act 2006 as, relevantly, an offence under s 61 of the Restraining Orders Act 1997.
To the extent that the Tribunal is now required to have regard to the Principles and Objects as stated in the 2024 Act (and to the extent that s 4(3) of the new Act now applies) when determining applications for review under the Act, I am of the view that, at least in the circumstances of this case, this does not change the principles which I am bound to apply. As noted above, there is a plethora of authority (including Supreme Court authority) to the effect that the purpose of the Act is to ensure public safety and that offences of domestic violence are to be treated with the utmost seriousness.
Further, I do not accept the respondent's submission that it is a relevant consideration in this matter that my decision may 'shortly be rendered moot' by operation of the 2024 Act as the applicant is a disqualified person. The applicant is not yet a disqualified person. The respondent's submission relies on an interpretation of various definition sections in Part 1 of the 2024 Act. However, no operative provision in relation to whom are disqualified persons and in what circumstances they are disqualified has commenced. Furthermore, the definition of a disqualified person in s 9(1) of the 2024 Act refers to a timeframe which is set by regulations which have not yet been promulgated.
Additionally, I note the provisions of s 9(4) of the 2024 Act which states that:
(4)A disqualifying period for a disqualifying order or disqualifying offence can be prescribed to apply in respect of –
(a)all disqualifying orders or disqualifying offences; or
(b)a particular kind or particular kinds of disqualifying orders or disqualifying offences; or
(c)disqualifying orders or disqualifying offences of a particular class or description, including (in the case of disqualifying offences) offences described by reference to the type of finding of guilt that applies in relation to the offences.
No regulation has yet been promulgated which prescribes the above matters. The Tribunal must apply the law which is in effect at the time which it makes its decision.

The Conduct Agreement Order

The nature of the relationship between the applicant and his ex-partner

As noted above, this Tribunal considers the commission of any incident of family violence to be a matter of utmost seriousness. However, in this matter, the nature of the relationship between the applicant and his ex-partner (AE) (and in particular whether it can be characterised as being one of family violence), was disputed.
It was not disputed between the parties that:
•The applicant and AE were in a de facto relationship from approximately 2008 until 2017. They both brought children into the relationship and had a further two children together a boy (B) and a girl (G) who were aged 9 and 10 years old respectively at the time of the hearing.
•The interim VRO and the CAO were made in the context of a relationship breakdown and Family Court proceedings between the parties.
At the hearing, the applicant gave evidence about AE's aggressive and abusive behaviour during their relationship which included incidents of violence such as throwing knives and plates at him. The applicant also gave evidence about AE's attempts to commit suicide and her diagnosis of severe borderline personality disorder.
The applicant denied that he had ever been violent to AE or threatened her and stated that she has repeatedly made misleading statements about his conduct in her affidavits in the Family Court of Western Australia for the purpose of removing his ability to spend time with the children. The applicant also gave evidence that all the incidents relied upon by AE as the basis of the interim VRO were untrue.
The applicant also gave evidence about his current relationship with AE. He stated that although the Family Court proceedings were ongoing, the parties now had a civil relationship when it came to communicating about the children. He referred to a recent example of him wanting to get B's passport renewed and needing AE's birth certificate for that purpose and he telephoned her and arranged to collect the certificate and drop it back.[4]
[4] ts 41, 10 July 2024.
Ms JK, who is employed by the applicant as the applicant's administrative assistant and has known him for 17 years gave evidence that she witnessed several occasions where AE was physically violent towards the applicant, including an incident where she threatened him with a knife and then threatened to end her own life. Ms JK gave evidence that on three occasions AE had left messages at the workplace for the applicant, saying she was going to self-harm by hanging herself somewhere, that she had previously taken AE to a doctor's appointment so she could get assistance for her mental health and that she was aware AE had received a mental health diagnosis but was not aware what it was. She also gave evidence that she had never seen the applicant assault or make threats to harm AE or the children.
Ms YB, the applicant's current de facto partner, also gave evidence. She has known the applicant for approximately 7 years and met him through her younger sister who was at the time dating AE. She gave evidence that her sister confided in her about her relationship issues with AE, including incidents where AE was physically violent towards her, which she believed arose due to AE's borderline personality disorder. Ms YB gave evidence that she saw the applicant support her sister with trying to understand AE's illness, even though his own relationship with her had ended. She also gave evidence which corroborated that of the applicant, namely that AE tended to engage in aggressive and violent behaviour after drinking excess alcohol.
The respondent's representative did not cross-examine any of the three witnesses about the nature of the relationship between the applicant and AE and therefore this evidence is uncontested.

The nature of the CAO

The CAO is stated to have been made under s 10H and s 43 of the Restraining Orders Act 1997 (WA) (RO Act). Section 10H of the RO Act states, relevantly, as follows:
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act[.]
The CAO was made by the Magistrates Court on 21 June 2022 and contains the seal of that court. The Registrar is identified as 'SM'. In my view it is a VRO for the purposes of s 11(3) of the Act because it is a judicial order which places restraints on a person's lawful activities and behaviour to prevent them behaving in a manner that could reasonably be expected to cause fear that the person will commit an offence against the person. It was also made within the last 5 years.
However, as noted above, the Act expressly states that despite the existence of a VRO which was made within the last 5 years, the Tribunal may reach the view that the person is a fit and proper person to hold a firearms licence.
A CAO is made by agreement between the parties. Section 10(1) of the RO Act expressly states that a CAO can be made by the court even without being satisfied that there are grounds for making a VRO in the same terms. Section 10(2) provides that a CAO does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant VRO. Further, in this matter, the CAO has the usual clause removed from the document which prohibits the person from maintaining a firearms licence.

Conclusion in relation to the CAO

The uncontested evidence of the applicant was that on the advice of his lawyer, he accepted the interim VRO being converted into a CAO with the firearm restriction being removed and that the Magistrate at the time congratulated both parties for settling the matter without the need for a final hearing to proceed.
The respondent's representative submitted that the Tribunal should rely on the evidence of AE at the interim hearing for the VRO as being evidence of the nature of the relationship. However, the evidence given by AE at the hearing for the interim VRO was given on an ex parte basis and therefore the applicant has never had the opportunity to challenge that evidence. The allegations made by AE in support of the interim VRO therefore remain untested. The VRO was never made final, and the allegations made by AE in her application for the interim VRO were denied by the applicant in his evidence in this proceeding, in relation to which he was not cross-examined by the respondent's representative. I note that the applicant's evidence was also corroborated to some extent by the two other witnesses, JK and YB.
In my view, in the circumstances of this case, the entering into of the CAO of itself is insufficient to establish that the applicant is not a fit and proper person to hold a firearms licence.

Breach of Conduct Agreement Order

On 5 April 2023 the applicant was convicted, upon a plea of guilty of breaching the CAO. He was fined $300 and was granted a spent conviction order.
The facts of the breach relate to the applicant contacting AE on the parenting App 'Our Family Wizard' in relation to the behaviour of the child G. At issue was whether the terms of that communication fell within the orders made by the Family Court about permitted communications. The CAO stated that the applicant must not communicate with AE except for communication solely regarding childcare arrangements or communication relating to the wellbeing of the children of the relationship.
The communication in question stated as follows:
That ute is pre sealtbelt [AE]. You should be more concerned about what you have done with [G]. You have developed major mental problems with her. None off [sic] this extreme behaviour happened when she was with me before. If she got upset about you I always calmed her down. Now she thinks she can talk like an adult to me, screaming and yelling at me. Picked up your traits 100 percent. Showing like she has already developed borderline personality disorder like you. You should be ashamed about what you have done to her. Absolute child abuse at its most. There should be jail time for that. You should be jailed for what you have done to her. She now is at major risk off [sic] self-harming.
The respondent's submission in relation to this matter was that any breach of a CAO is an offence which relates to family violence and should be treated as such and automatically makes the applicant not a fit and proper person. However, in my view, it is necessary to have regard to the circumstances and context of the conviction. The applicant's uncontested evidence was that he sent the message following a particularly difficult episode with G which involved her running away from the applicant's car, across traffic and climbing fences into stranger's homes.
I am of the view that whilst the message was intemperate in nature, it was not abusive or threatening in the context of the circumstances at the time. In my view this offence is very much towards the lower end of offences of this type which is evident by the fact that the applicant was granted a spent conviction order in relation to it.
I accept the applicant's submission that this offence involved a technical breach of the CAO and did not arise in circumstances where there was any allegation of threatening behaviour or violent conduct.
I note that the applicant has no other criminal record. This offence therefore does not represent a pattern of disregard for the law. Further, I am of the view that it is not so serious of itself to establish that the applicant is not a fit and proper person to hold a firearms licence.

Criminal charges

On 14 September 2022 the applicant was charged with five historical charges dating back to 2011 and 2012. Subsequently, four of the charges were withdraw by police upon consideration that the applicant might be able to rely on the defences of self-defence.
The remaining charge, common assault in circumstances of aggravation pursuant to s 313(1)(a) of the Criminal Code (WA) was dismissed after a trial on the basis that the learned magistrate could not be satisfied beyond a reasonable doubt that the incident had occurred. The reasons for decision of the magistrate make clear that he could not be satisfied that the offence occurred, as 'effectively we have got an oath on oath from 12 years ago'.
The respondent summarises the facts in relation to this alleged offence as follows:
This charge arose from an incident on 13 September 2011. The applicant was in the shower when [AE] entered the bathroom and tipped cold liquid on the applicant. The applicant exited the shower and chased [AE]. The applicant was then alleged to have caught [AE], restrained her and struck her to the right buttock with an empty glass beer bottle. The strike caused a bruise. The assault was not reported to police at the time.
The uncontested evidence of the applicant was that he and AE were litigating in the Family Court in the latter half of 2022 and that 'it was not a good time'. He denied that this offence ever occurred.
The respondent's position in relation to these charges is that they 'were laid for a reason' and that the Tribunal should have regard to the charges themselves, irrespective of the withdrawals and acquittal. The respondent's representative urged the Tribunal to have regard to the different standard of proof in Tribunal proceedings (being the civil rather than the criminal standard) and to the provisions of s 32(2) of the SAT Act which provides that the rules of evidence do not apply in Tribunal proceedings.
However, as this Tribunal has previously observed, the fact that the rules of evidence do not bind the Tribunal does not mean that those rules have no operation or that the Tribunal proceedings should be conducted without regard to the same. The more flexible procedure provided by s 32 of the SAT Act requires that Tribunal decisions are made on the basis of evidence that has probative force: Roongrote and Commissioner of Police [2018] WASAT 115 at [8].
The only evidence provided by the respondent in relation to the criminal matters were the Statement of Material Facts for the offences. No witness was called (not even the investigating officer) and the applicant was therefore not given an opportunity to test and challenge the respondent's case and by cross-examining the witness whose statements provided the basis for the respondent's decision: Polizzi v Commissioner of Police [No 2] [2017] WASC 166 at [55] (Polizzi).
In Polizzi Corby J noted at [69] that although the Tribunal is not bound by the rules of evidence, the rules of evidence are founded upon principles of common sense, reliability and fairness as reflected by the following passage of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained (362 - 363).
Corby J went on to say at [70] that these observations should be borne in mind having regard to the allegations made by the respondent, including that the appellant engaged in criminal conduct that was not the subject of criminal charges or for which the appellant was acquitted.
In Polizzi at [85], the Court, referring to the seminal decision on this point of O'Rourke v Miller (1985) 156 CLR 342 (at 353 per Gibbs J), noted that whether natural justice requires that a party be given an opportunity to cross-examine a witness depends on the circumstances of the case, the nature of the inquiry, the subject matter being dealt with and the rules governing the Tribunal. Also see S v State Administrative Tribunal of Western Australia[No 2] [2012] WASC 306.
Under s 32(6)(c) of the SAT Act, one of the obligations upon the Tribunal is to take measures that are reasonably practicable to ensure that the parties have the opportunity in the proceeding:
(i)to call and give evidence;
(ii)to examine, cross‑examine or re‑examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
In my view, applying the above principles, natural justice requires that in the circumstances of this case the applicant should be given the opportunity to challenge the serious allegations by way of crossexamination, given that the respondent was relying wholly on the ex parte account of AE given in another proceedings.
Further, it was not suggested to the applicant during crossexamination of him by the respondent that he did in fact commit any of the offences or engage in any of the behaviour alleged to ground the basis for the interim VRO. Further, as noted above, neither the applicant nor the witnesses JK and YB were cross-examined as to their evidence that it was AE rather than the applicant who engaged in violent behaviour.
In short, in my view there is simply no evidence of any probative force upon which I can rely to form a view that any of the criminal offences occurred, even having regard to the different standard of proof. As such, I find that no regard should be had to any of the dismissed criminal offences when considering whether the applicant is a fit and proper person.

Photographs involving children and firearms

The respondent sought to rely on several photographs taken of G holding or in close proximity to firearms, a photo of the applicant's former stepdaughter (SD) holding a firearm, and photographs of the applicant himself holding firearms to show that the applicant had a lax attitude to firearms safety. The evidence led by the respondent was that these images were provided by AE to police during the criminal investigation into the dismissed criminal offences discussed above.
The applicant's uncontested evidence was that:
•all the photographs were taken in circumstances where the firearms were unloaded and were out of their secure cabinet for a short time for the purpose of being cleaned;
•all the photographs were taken by AE on her mobile phone (some at the applicant's request and some on her own initiative);
•AE also held a firearms licence at the time the photographs were taken; and
•AE owned three of the firearms shown in the photographs.
As to the photo of SD holding a firearm, the evidence of the applicant was that she was the most interested out of the children in shooting and would regularly attend the pistol club with him and watch the shooting competition. He stated that this photo was taken after a competition, and after he had finished cleaning the pistol and was about to put it away. His evidence was that he had been teaching SD the importance of cleaning a firearm after its use when AE suggested to SD to take a photo. He further stated SD was shooting at the range at the time as a junior competitor and the photo depicts her demonstrating good gun control as it shows her finger off the trigger and alongside the frame of the pistol.
In relation to the photographs of B standing near the couch on which firearms were placed, the applicant gave evidence that these photographs were taken by AE who 'thought the whole thing was hilarious' and that he did not ask for or want them to be taken.
In relation to the photo of SD sitting in front of the applicant's Kruger charger pistol with a custom cradle, the applicant gave evidence that he asked AE to take the photograph as he wanted a keepsake of what the charger pistol looked like with the custom cradle before it was dismantled (noting that he was complying with a directive which had been put out by WA Police that all cradles of this type could no longer be used with charger pistols).
In relation to the photo of SD stacking ammunition, the applicant gave evidence that this was taken by AE when SD was helping the applicant prepare for a competition shoot and that he was sitting on the other side of the table at the time eating lunch.
The respondent also relies on photographs of the applicant holding a bayonet rifle and other guns as evidence that the firearms are being stored in a casual manner that is inconsistent with the Act and general safekeeping practices. The evidence of the applicant was that he was showing his children how to stand to attention in the photo of the bayonet as he used to do at army cadets. In relation to his storage of his firearms more generally, the applicant's evidence was that the firearms were only out of their secure storage whilst they were being cleaned and that he did not leave them at any point.
In relation to the photographs of the children with the firearms, the applicant gave evidence that it was not uncommon for children to be around firearms if they are 'in that world'. For example, the applicant spoke about his son B who went on to become the youngest member of a sporting shooters club at the age of 8 years old due to his maturity and responsibility around firearms. The applicant gave evidence that his exposure of the children to the firearms was to ensure they knew how to manage firearms safely, that they were always operated around adults and were never loaded. Ms JK gave evidence that she always observes the applicant enforcing firearms safety rules with the children and quizzing them on the firearms safety rules before they touch a firearm. I accept that in a household where both parents own firearms, it is to be expected that the children will have some exposure to them in some form.
This is not a case where the applicant has been convicted of any offences under the Act relating to firearms safety. The respondent's representative informed me that no charges had been laid in relation to this material as the material was only discovered after the time limit for the commencement of charges had expired.
However, the respondent submitted that the photographs were prima facie evidence of an offence under the Act, including an offence under s 23(9)(b) if a person 'having failed or omitted to take all reasonable precautions to prevent the same, permits a young person under the age of 18 years to have unlawful possession of a firearm or a major firearm part'. The respondent also referred to an offence under s 23(9)(d)(i) of the Act concerning failing to provide and use adequate storage facilities to ensure the safety of any firearm.
However, I accept the applicant's submission that if charges of this nature had been laid, there were potential issues with such charges. The evidence is that some of the firearms in fact belonged to AE, she took the photographs and the applicant did not want at least some of the photographs to be taken. Further, the meaning of 'unlawful possession' in these circumstances would have been at issue.
The applicant also referred to the provisions of s 8(1)(n) of the Act which provides that no licence under the Act is required 'by a person under the age of 18 years who uses a firearm, not being a handgun, or ammunition for that firearm under the supervision of, and which is the property of, a person who is the holder of a licence or permit under this Act relating to that firearm'. The Act therefore contemplates that a child under the age of 18 years may use a firearm under the supervision of an adult licence holder.
Further, the evidence establishes that the photographs were taken by AE at her instigation or with her acquiescence during the period of their relationship, that AE also held a firearms licence at the time the photographs were taken and that some of the firearms in the photographs were hers. There is no evidence that the photographs were taken in order to threaten or intimidate AE.
For these reasons I find the photographs do not constitute prima facie evidence of a breach of the Act.
For these same reasons I find the photographs also do not, either of themselves or in combination with the breach of the CAO, establish that the applicant is not a fit and proper person to hold a firearms licence.

What is the correct and preferable decision?

I have decided that the correct and preferable decision is that the respondent's decision to revoke the applicant's licence should be set aside. This is because I am satisfied that he is a fit and proper person to hold the licence for the reasons set out above.

Protection of the identity of the applicant

Under s 62 of the SAT Act the Tribunal may, on the application of a party or on its own initiative, in the circumstances described in s 61(4), order that any information that might enable a person who has appeared before the Tribunal to be identified is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
The circumstances referred to in s 61(4) of the SAT Act are:
(a)to avoid endangering the national or international security of Western Australia or Australia; or
(b)to avoid damaging inter-governmental relations; or
(c)to avoid prejudicing the administration of justice; or
(d)to avoid endangering the physical or mental health or safety of any person; or
(e)to avoid offending public decency or morality; or
(f)to avoid endangering property; or
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.

In this case the evidence refers to medical information relating to AE and the circumstances of the children of the relationship in relation to which parenting proceedings are on foot in the Family Court. Accordingly, I have decided that it is in the interests of justice that the applicant in this matter should be identified as FD rather than by his name (the names of AE, the two witnesses and the names of the children have also been anonymised).

Orders

The Tribunal orders:
1.The decision of the respondent to revoke the applicant's firearms licence is set aside and substituted with a decision that the licence is not revoked.
2.The name of the applicant is not to be published.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
6 SEPTEMBER 2024