Fitzgerald v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 142

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fitzgerald v Commissioner of Police, NSW Police Force [2023] NSWCATAD 142

Hearing dates:

24 June 2022

Date of orders:

07 June 2023

Decision date:

07 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

The decision of the Respondent to revoke the Applicant’s Category AB firearm licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – revocation of category AB firearms licence – fit and proper person – public interest – pattern of “aggressive behaviour”

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

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

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

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

Joseph v NSW Commissioner of Police [2017] NSWCA 31

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Dean Fitzgerald (Applicant)
Commissioner of Police (Respondent)

Representation:

Applicant (Self Represented)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/00013734

Publication restriction:

(1) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication of the material filed by the Respondent on 17 March 2022, consisting of documents concerning a third party (‘third party documents’) is prohibited.
(2) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure of the third party documents or matters contained in the third party documents is restricted to Mr Fitzgerald, the Commissioner of Police, the legal representatives for each party and the Tribunal.
(3) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. This case is about a decision by the Commissioner of Police to revoke Mr Fitzgerald’s Category AB firearms licence.

2. The Commissioner of Police (‘Commissioner’) revoked the licence on the basis that Mr Fitzgerald exhibited a “pattern of exhibiting aggressive behaviour”. The Commissioner decided that Mr Fitzgerald is not a fit and proper person to possess firearms and that it is not in the public interest for him to continue to hold the licence.

Background

3. Mr Fitzgerald was first issued with a Category AB firearms licence in 2009. The most recent firearms licence was renewed on 17 December 2016. The genuine reason given by Mr Fitzgerald on the re-application form for possessing or using firearms was ‘recreational hunting/vermin control’. That licence was due to expire on 17 December 2021.

4. On 17 December 2019 Mr Fitzgerald was charged with assault occasioning actual bodily harm and “stalk/intimidate intend fear physical etc harm”. A provisional apprehended violence order (‘AVO’) was also issued against him.

5. On 3 September 2020 the Commissioner of Police revoked Mr Fitzgerald’s firearms licence (the ‘revocation decision’) because of the criminal charges and provisional AVO against him and also because Mr Fitzgerald had “previously displayed aggressive behaviour towards members of the community and police”. At this point in the time the criminal charges had not yet been determined by the court.

6. On 28 September 2020 Mr Fitzgerald requested an internal review of the revocation decision. On 1 October 2020 Mr Fitzgerald sent an email in support of this review request and stated that:

• He had held a firearms licence for more than 10 years

• He relies on his firearms licence for 90% of his income as he was a licensed kangaroo harvester and works in feral pest control

• He is not a violent or aggressive person

7. On 13 January 2021 the Local Court dismissed the criminal charges and an AVO was made against Mr Fitzgerald.

8. Mr Fitzgerald lodged a successful appeal against the AVO. The District Court set aside the orders of the Local Court and revoked the AVO on 22 June 2021.

9. On 20 December 2021 the decision to revoke the firearms licence was affirmed on internal review. The reviewer affirmed the revocation decision on the basis that it is not in the public interest for Mr Fitzgerald to continue to hold the licence because:

• Mr Fitzgerald has a “propensity toward threatening and aggressive behaviour which raises serious concerns about [his] level of self-control and [his] suitability to hold a firearms licence”

• Mr Fitzgerald has been undertaking activities not authorised under the current genuine reason

• There were concerns about Mr Fitzgerald possessing firearms because of his domestic circumstances, as the Commissioner had information that Mr Fitzgerald’s son Alex Fitzgerald resided at the same address and that a review of police records showed there was “an extensive history of adverse holdings” in relation to Alex Fitzgerald.

10. On 14 January 2022 Mr Fitzgerald lodged an application for administrative review at a Service NSW Branch. The application was then received by the Tribunal registry on 19 January 2022.

Relevant legislation

11. The relevant legislation governing the issuing 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.”

12. 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.

13. 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).

Administrative review jurisdiction

14. 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.

15. 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. 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.

The hearing

Was the application for review lodged within time?

16. The internal review decision was made on 20 December 2021. On the administrative review form Mr Fitzgerald gives 22 December 2021 as the date on which he was notified of the decision. It appears that the decision was emailed to his legal representative.

17. Mr Fitzgerald completed an application for review form on 14 January 2022 and lodged it with Service NSW that same day. The application was then received at the Tribunal Registry on 19 January 2022.

18. Applications for review must be lodged within 28 days after the internal review is finalised: subsection 24(4) of the Civil and Administrative Tribunal Rules 2014. In this case, that means 28 days after Mr Fitzgerald was notified of the outcome of the internal review: subsection 53(9)(a) of the Administrative Decisions Review Act 1997.

19. Ms Sylvia Moses, the legal representative for the Commissioner of Police, did not raise any issue as to whether the application for review had been made within time.

20. Mr Fitzgerald’s lawyers, Coastal Law and Conveyancing, wrote to the Respondent on 28 September 2020 and explained that they were acting for Mr Fitzgerald in the criminal matter and requested an internal review of the revocation decision. It was reasonable for the Respondent to then send the internal review decision to those representatives. It is likely that the decision was emailed to the lawyers on 20 December 2021, and I so find in the absence of any other information such as a covering email attaching the internal review decision.

21. Rule 24 of the of the Civil and Administrative Tribunal Rules 2014 requires that an administrative review application must be lodged at the Tribunal Registry. That occurred on 19 January 2022, on day 30 after Mr Fitzgerald’s legal representatives received the decision on his behalf.

22. Mr Fitzgerald lodged his application for review on 14 January 2022 at Service NSW, the government organisation that accepts various forms for NSW government agencies, including firearms licence application forms. It was not clear from the wording of the letter from Coastal Law and Conveyancing as to whether those solicitors were acting in the firearms matter. There was a small number of days delay in the receipt of the application. In the circumstances I have decided to exercise my discretion under section 41 of the Civil and Administrative Tribunal Act 2013 to extend the time for lodgement of the application.

Adjournment refused

23. On 7 April 2022 I set a procedural timetable for the filing of any further evidence or submissions. At that time, I also noted that Mr Fitzgerald may wish to seek his own legal advice on the question of what orders the Tribunal could make on review, given that the firearms licence which is the focus of the review would have expired.

24. Mr Fitzgerald had filed his material some ten days late. This resulted in an adjustment to the timetable with the respondent filing additional evidence on 15 June 2022.

25. Mr Fitzgerald explained there was some delays in contacting his solicitor but that he had in fact had an opportunity to speak with his solicitor the day prior to the hearing. He said that he would appreciate some extra time in order to further prepare his case.

26. I refused Mr Fitzgerald’s application for an adjournment as Mr Fitzgerald has had ample time to prepare his case and there would be no prejudice to him to proceed with the hearing.

Evidence of Mr Fitzgerald

16 September 2015 incident

27. Mr Fitzgerald gave evidence about an incident that occurred on 16 September 2015, and which gave rise to charges against him of ‘armed with intent to commit indictable offence’, ‘stalk/intimidate intend fear physical etc harm (personal)’ and ‘affray’. The outcome of those charges was that the first two charges where withdrawn and on 5 August 2016 the Local Court found Mr Fitzgerald guilty of affray and imposed a section 10 bond for 12 months.

28. In oral evidence, Mr Fitzgerald said that he was at home when his partner received a call from their then teenaged son, Alex. Alex said he was getting beaten up at the skate park. He said he went to the skate park to get Alex. He denied being aggressive. He agreed that there were twenty or thirty youths there. Mr Fitzgerald said one came at him with a motor bike helmet and he told this young person to “back up and not be a fucking hero”. He said another “had a go at me”. He said he took Alex home and made a call to police.

29. Under questioning, Mr Fitzgerald denied the police account of the incident which stated that Mr Fitzgerald had a spanner and a hammer in his hands at the time and chased two of the young people. He said he did have a spanner and a hammer but that they were both in his car and not in his hands. He said that he uses his “mouth” but if backed into a corner sometimes he “will use [his] fists for self-protection” but denied assaulting or threatening anyone. He said his son was beaten up and pointed out that police did nothing about that.

30. Mr Fitzgerald was asked about the statement of Senior Constable Grant Richardson, prepared for these proceedings. In that statement Senior Constable Richardson stated that one witness claimed that Mr Fitzgerald said to him “Whoever your mate is, tell him I will find him, I have an R1”, “I will kill him, I know where he works.” Mr Richardson states that he understands an R1 to be a South African Assault Rifle, which he states is illegal to possess in NSW.

31. When this was put to him, Mr Fitzgerald denied saying these words. He said that an R1 was a 1000cc road motorcycle. He said it was a motorcycle not a rifle that he was referring to. He denied that he had threatened to kill anyone that night. Rather, he got into his car and went home.

32. Mr Fitzgerald also denied that he had spoken with Senior Constable Richardson in an aggressive and frustrated manner.

33. Ms Moses also questioned Mr Fitzgerald about the police facts sheet about the incident. The facts sheet stated that Mr Fitzgerald told police on 15 October 2015, about one month after the incident and after being cautioned, that he went to the skate park to defend his son and that the victims approached him. Police record that Mr Fitzgerald told them he had the spanner but that he denied ever holding the spanner in any way to threaten anyone, and that he only had the spanner down by his side ready to grab it, “if need be”.

34. Mr Fitzgerald denied saying to police he took the spanner with him or that he had attended the skate park armed with the spanner, because he did not know “what sort of situation” he was going into. He said it was in the car, in the toolbox of his car. He said that he would not have said to police that he had a spanner at his side ready in case he needed it.

35. Mr Fitzgerald agreed that he attended the skate park in an angry state but denied he presented in an aggressive fashion. He said that he asked who was the one who hit his son.

36. Ms Moses put to Mr Fitzgerald the account given by one witness, Nicholas Owen, who provided a statement to police. Mr Owen told police that Mr Fitzgerald arrived in his car after driving quickly, cutting through around a roundabout on the wrong side of the road and then up onto the footpath and that he “slammed on the brakes, causing [the car] to skid to a stop”. Mr Fitzgerald approached Mr Owen and appeared to be “full of rage and was holding the wrench above his head”. Mr Owen said in the statement to police that he told Mr Fitzgerald he was not part of what was happening, but that Mr Fitzgerald then ran at him with the wrench raised above his head. Mr Owen said he was afraid that Mr Fitzgerald was going to hit him with the wrench. Mr Owen also said that he saw Mr Fitzgerald approaching his friend Chris Loads with the wrench above his head and Mr Loads walking with his hands up and walking backwards. Mr Owen said he saw Mr Fitzgerald then begin running at Mr Loads and that he chased him down the road. He said he saw Mr Fitzgerald hit the side of a departing ute as it drove past.

37. Mr Loads also gave a statement to police about the skatepark incident. He described Mr Fitzgerald as driving his ute in an aggressive manner when he arrived, stopping up on the footpath, skidding to a stop and just missing Mr Loads’ friends. He described Mr Fitzgerald as wielding both a ball point hammer and a seventeen-inch spanner and that Mr Fitzgerald tried to trip him as Mr Loads ran and was swinging the hammer at him. He said he also heard a bang and saw that Mr Fitzgerald hit a car with something.

38. A third witness, Mr Nathan Bowman, gave a statement to police. Mr Bowman also said he saw Mr Fitzgerald holding a spanner which he said was about 30cm long. He said after chasing after Mr Owen with the spanner, Mr Fitzgerald returned to his car and picked up a hammer in the other hand and ran at Mr Loads with a tool in each hand. He saw Mr Fitzgerald hit a passing car with the hammer and that he threw the hammer and missed a second passing car.

39. Mr Bowman described an interaction shortly after with Mr Fitzgerald where Mr Fitzgerald said: “Whoever your mate is, tell him I will find him, I have an R1.” “I will kill him. I know where he works”.

40. Under cross-examination, Mr Fitzgerald denied wielding the spanner or hammer. He denied that his conduct caused others to be fearful or that he chased anyone other than Christopher Loads who sung his helmet at him. He denied that Mr Loads had his hands up. He denied hitting another car with something. He denied making the threat to Mr Bowman about killing his friend.
    He said he was talking about a R1 Yamaha motorbike, a high-powered sports bike, and not an assault rifle. He said that he had an R1 motorbike at the time and agreed with Ms Moses that it was registered.

41. Ms Moses questioned Mr Fitzgerald about the statement of Senior Constable Risby. Senior Constable Risby said he told Mr Fitzgerald words to the effect of: “you can’t go sorting out things on your own”. Mr Risby stated that Mr Fitzgerald responded and said words to the effect of: “I’ll protect my family. I’ll do what I’ve got to do.” Under questioning from Ms Moses, Mr Fitzgerald agreed that his recollection about this was “not great”. He agreed he probably said to police he would sort it out on his own. He agreed he might have said “I’ll protect my family” but did not recall saying “I’ll do what I got to do”. He agreed he did ask police to leave his place.

November 2016 firearms licence application

42. Mr Fitzgerald answered “no” to the question on his firearms application form, dated 9 November 2016, which asked whether in NSW or elsewhere:

b) Are you currently subject to a Good Behaviour Bond for an offence referred to in question e) or an Interim Apprehended Violence Order?

…

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?

43. This was despite the fact the Local Court found him guilty of affray on 5 August 2016, without recording a conviction, and imposed a 10 bond for 12 months.

16 December 2019 incident

44. Ms Moses asked Mr Fitzgerald about an incident that occurred on 16 December 2019, which led to charges against him for ‘assault occasioning actual bodily harm’ and ‘stalk/intimidate intend fear physical etc harm (personal)’.

45. The police facts sheet for that incident described Mr Fitzgerald arriving at the Jason Rhodes’ house at speed in his vehicle and that Mr Rhodes had to move off the driveway to avoid being hit by the car. Mr Fitzgerald is described as exiting his car in a “rapid motion and was aggressive towards the victim”. He accused Mr Rhodes of “pulling a knife” on his daughter. The fact sheet said that Mr Fitzgerald then ran at Mr Rhodes and grabbed him with both hands around the neck and shoulder area and yelled aggressively at him. Mr Fitzgerald is alleged to have thrown two punches during the altercation. He is also alleged to have said “You are all fucking dead. I’m going to come back and shoot you two and your kids”. Police state that Mr Fitzgerald admitted to attending the skate park in an agitated mood and said he was only defending himself.

44. In oral evidence, Mr Fitzgerald denied he drove into the driveway causing the Mr Rhodes to have to move off the driveway to avoid being struck by his car. Mr Fitzgerald said that he had proved in the criminal case that he did not grab Mr Rhodes around the neck. He denied that he was aggressive. He said Mr Rhodes had punched him. He denied making a threat to kill Mr Rhodes, his partner and two children.

45. When Ms Moses put to Mr Fitzgerald that he had made threats to kill others in both 2015 and 2019. Mr Fitzgerald said that was “not the sort of shit you say, especially when you have firearms.” He suggested that those who claimed he made these threats were lying. He said: “I don’t threat to kill any one especially with a firearm”.

Relationship with son Alex

48. Ms Moses questioned Mr Fitzgerald about his relationship with his son, Alex. Ms Moses took Mr Fitzgerald to the statement of Senior Constable Risby where Senior Constable Risby thought Mr Fitzgerald was frustrated and angry with police when they came to do bail checks on Alex. Mr Fitzgerald said he was bewildered about why police had come to check on Alex three times in one night.

49. Mr Fitzgerald agreed that on 17 November 2019 Alex had been aggressive towards him and Alex had hit him and pushed and shoved him.

50. Evidence of Mr Richardson

51. Senior Constable Richardson told the Tribunal in evidence that police made enquiries of Roads and Maritime Services (RMS) to determine from registration records whether Mr Fitzgerald had a Yamaha R1 motorcycle as at 15 September 2015. There was no Yamaha motorcycle registered to Mr Fitzgerald.

52. Mr Fitzgerald responded and said that he had a Yamaha R1 motorcycle in early 2015 and he still had the paperwork. He said if he had a R1 rifle he would have police kicking down his door as it is a prohibited firearm.

The ‘third party documents’

53. The parties receiving these reasons are reminded that they are prohibited from publishing the material filed by the Commissioner on 17 March 2022 about a third party (‘third party documents’). Disclosure of the third party documents or matters contained in this third party documents is restricted to Mr Fitzgerald, the Commissioner of Police, the legal representatives for each party and the Tribunal.

54. Any material in the paragraphs marked ‘[NOT FOR PUBLICATION]’ must not be published.

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

Other material relied on by the Respondent

58. Ms Moses also took Mr Fitzgerald to the statement of Senior Sergeant Crouch which stated that at about 9:50pm on 5 June 2020 she was conducting a bail compliance check on Mr Fitzgerald. Senior Sergeant Crouch stated that Mr Fitzgerald was “immediately irate” when police knocked on his door and informed him about the purpose of their visit. She stated that Mr Fitzgerald said words to the effect of “what the fuck are you doing here. You can’t be here. You can’t conduct a bail compliance check on me. No one has ever conducted a bail check on me. This is bullshit.” She believed that Mr Fitzgerald thought police meant that he could not leave his house, but they in fact attended to confirm he was residing that that address, as required by his bail conditions. She described him as “yelling abuse” as police got into their car but later calmed down and thanked police once he understood that police wanted to confirm he was residing at the address.

59. When questioned about this account, Mr Fitzgerald admitted that he did have a “heated conversation” with police. He said that he was just annoyed at police knocking on his door. He said he did no not recall swearing when speaking with police, but that he may have sworn.

Mr Fitzgerald’s submissions

60. Mr Fitzgerald argued that the decision to revoke his licence was incorrect. He said his last application for a firearms licence was approved and his licence was renewed. He said that if he was a threat or a violent person his licence would not have been renewed.

61. He emphasised that the criminal charges laid against him in 2019 were dismissed and that the Apprehended Violence Order was revoked by the District Court.

62. Mr Fitzgerald acknowledged his criminal history and that he had on occasion become argumentative, but said he was not violent or aggressive.

Commissioner’s submissions

63. Ms Moses argued that it was not in the public interest for Mr Fitzgerald to be granted a firearms licence. She pointed out that the Local Court had found Mr Fitzgerald guilty of affray. She submitted that Mr Fitzgerald had a propensity towards threatening and aggressive behaviour. She argued that Mr Fitzgerald also showed disrespect and aggression towards police when they were carrying out their duties and explained that holders of firearms licences need to co-operate with police.

64. Ms Moses said that Mr Fitzgerald’s activities did not align with the genuine reason for which the licence was granted. Ms Moses pointed out that Mr Fitzgerald argued he needs his firearms licence as up to 95% of his income is derived from it. She submitted that Mr Fitzgerald has provided no evidence to change and substitute a genuine reason for the licence based on this. Ms Moses said that each time Mr Fitzgerald applied for his firearms licence he gave ‘recreational hunting and vermin control’ as the genuine reason for requiring a firearms licence. This was the genuine reason for the firearms licences issued on 30 October 2009, 17 December 2014, 17 December 2016 (which was then revoked).

65. Ms Moses also said the Commissioner had concerns about the domestic situation of Mr Fitzgerald and his relationship with his son, Alex. There had been violence in the past between Alex and Mr Fitzgerald.

66. Ms Moses drew attention the incidents in 2015 and 2019. She said that the 2015 incident involved Mr Fitzgerald wielding a spanner and chasing others, who fled in fear. She said the 2019 involved Mr Fitzgerald being at the victim’s throat. She submitted that both incidents are said to involve Mr Fitzgerald making a threat to kill others.

67. Ms Moses submitted that Mr Fitzgerald’s evidence that he did not make the threat to Mr Bowman shortly after the incident in 2015 was “problematic”. She relied on the evidence of Senior Constable Richardson that there was no R1 motorcycle owned and registered to Mr Fitzgerald at the time of the incident.

68. Ms Moses said Mr Fitzgerald was not a fit and proper person to be issued with a firearms licence and that it would not be in the public interest for the licence to be issued.

Further material filed following the hearing

69. I set a procedural timetable for the parties to file additional material following the hearing and admitted further evidence filed by Mr Fitzgerald in chambers following the hearing on the basis that the Respondent did not object to the tender of that material.

70. Mr Fitzgerald provided documents showing he had:

• Attended a Safe Shooting Course in 2009

• Achieved a TAFE Statement in Australian Game Meat, Hygiene and Handling in 2011

• Had a Kangaroo Harvester Firearms Accreditation, which expired in 2016

71. In response, the Commissioner of Police made written submissions that the additional material filed by Mr Fitzgerald did not establish that Mr Fitzgerald required a firearms licence for generating income from employment. Ms Moses submitted that Mr Fitzgerald had not demonstrated that it is necessary in the conduct of Mr Fitzgerald’s employment to possess or use firearms. She said that Mr Fitzgerald had not produced any evidence to identify the business or employment in which he is currently involved or that it is necessary to that business or employment to possess or use firearms. She submitted that the Kangaroo Harvester Firearms Accreditation relied on by Mr Fitzgerald carries no weight and has expired in 2016.

Consideration

72. I found that Mr Fitzgerald was, at times, an unimpressive witness. His evidence was inconsistent. He denied wielding a spanner or hammer at the skate park on 16 September 2015 and told the Tribunal that these tools were in his toolbox in his car during the incident. This was contrary to what I accept he told police on 15 October 2015, which was that he had the spanner with him as he “did not know what sort of situation” he would encounter at the skate park and that it was down by his side to grab it “if need be”.

73. There are multiple witness statements, all of whom state they saw Mr Fitzgerald chase two men and threatened each of them with a spanner or wrench or both. They also state they saw Mr Fitzgerald throw tools at a passing car. I accept these accounts.

74. I am also satisfied that Mr Fitzgerald made the threat to both Mr Bowman following that incident and said that he had an R1 and would find and kill his friend. I found Mr Fitzgerald’s evidence that he was referring to an R1 motorcycle lacking in credibility, particularly given that he asserted he had such a motorcycle registered in his name, but in fact he did not.

75. I also find that Mr Fitzgerald was involved in an incident on 16 December 2019 where he grabbed Mr Rhodes with both hands around the neck and yelled aggressively at him. I also find that Mr Fitzgerald threatened Mr Rhodes by saying “You are all fucking dead, I’m going to come back and shoot you two and your kids.”

76. Mr Fitzgerald emphasised that he had not been convicted of the affray offence, having been given a s10 bond by the Local Court. A section 10 refers to section of the Crimes (Sentencing Procedure) Act 1999, whereby the court can find a person guilty of an offence and decide not to record a conviction. He also pointed out that the charges that were issued against him following the 16 December 2019 incident were dismissed by the Local Court and the AVO revoked by the District Court.

77. The cases are clear that the Tribunal can consider conduct that did not result in a criminal conviction. In Joseph v NSW Commissioner of Police [2017] NSWCA 31 the Court of Appeal cited
    Commissioner of Police, NSW South Wales Police v Mercer [2005] NSWADTAP 55 at [20] where the Appeal Panel said:

“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 decision.”

78. There was no evidence before me as to why the charges were dismissed in respect of the 2019 incident or why it was that the other charges were withdrawn in relation to the 2015 incident. Despite this, and because of my assessment of the credibility of Mr Fitzgerald’s evidence, I placed significant weight on the material tendered by the Respondent including witness statements and fact sheets from the criminal proceedings.

79. Ms Moses submitted that because Mr Fitzgerald had a conviction for affray in 2017 this offence was caught by section 11(5)(b) of the Firearms Act 1996 and clause 5(1)(i) of the Firearms Regulation 2017. I reject that submission, as it is likely that in giving the s10 bond that the Local Court found Mr Fitzgerald guilty but did not proceed to conviction.

Is Mr Fitzgerald no longer a fit and proper person to hold a licence?

80. As a result of the above findings, I am satisfied that Mr Fitzgerald is no longer a fit and proper person to hold a firearms licence. I note that section 25(2)(a) of the Firearms Act 1996 operates to give the Tribunal, standing in the shoes of the Commissioner, a discretion to revoke the licence. I have decided to exercise that discretion and affirm the revocation decision.

81. As part of my consideration of the issue of whether Mr Fitzgerald is a fit and proper person to hold a licence, I must consider the principles of the Firearms Act 1996, including the overriding need to ensure public safety: refer to section 3(1)(a) of the Firearms Act 1996. As the Tribunal stated in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22], fitness and propriety must be considered “in the context of at all times ensuring public safety.”

82. I am satisfied that the conduct of Mr Fitzgerald in the 2015 and 2109 incidents gives rise to a real and appreciable risk to public safety. He has a propensity towards threatening and aggressive conduct and has made threats including to kill other by using firearms. This is of serious concern, and I conclude on all the evidence that Mr Fitzgerald is not a fit and proper person who can be trusted to have possession of firearms without danger to public safety of the peace. It would also be contrary to the public interest for Mr Fitzgerald to continue to hold a firearms licence for the same reasons.

ORDERS

83. The decision of the Respondent to revoke the Applicant’s Category AB firearm licence is affirmed.

**********

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: 07 June 2023