Ford v Commissioner of Police

[2022] NSWCATAD 87

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ford v Commissioner of Police [2022] NSWCATAD 87

Hearing dates:

27 February 2022

Date of orders:

14 March 2022

Decision date:

14 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING – firearms – allegations of assault and intimidation found not proven to criminal standard - conflicting accounts – admission in relation to safe storage failure – fit and proper person – public interest – different tests

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

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

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cook v Commissioner of Police [2021] NSWCATAD 204

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144

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

McDonald v Director General of Social Security (1984) 1FCR 353 at 357

McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

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

Category:

Principal judgment

Parties:

Graham Dominic Ford (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J Fenton (Applicant)

Solicitors:
Hannay Lawyers (Applicant)

File Number(s):

2021/285430

REASONS FOR DECISION

1. The Applicant, Graham Dominic Ford, has held a firearms licence in Queensland for many years. On 2 June 2021, he applied in this State for a Category AB firearms licence, but his application was refused. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

The legislative framework

2. The principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly:

3 Principles and objects of Act

(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

and

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

....

(2) The objects of this Act are as follows:

…

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

…

3. The Act, in setting out restrictions on the issue of licences, provides, relevantly:

11 General restrictions on issue of licences

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

4. The Applicant provided an affidavit dated 18 February 2022. He gave evidence and was cross examined.

5. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material. Material filed by the Respondent included two body worn video (BWV) recordings made by Police when they attended the Applicant’s home on 22 January 2020. The first BWV records the Police interview of Lisa Ford, the Applicant’s then wife (Lisa) in an ambulance out the front of their rural property. The second BWV was made shortly afterwards. The parties accepted that I had viewed that material prior to the hearing and I indicated that I would review it again after the hearing, which I did.

6. Both the Applicant’s counsel and the Respondent’s representative provided written submissions.

Tribunal’s approach

7. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

On what basis was the Applicant’s licence application refused?

8. In summary, the application was refused on the basis that it was not in the public interest that the Applicant hold a firearms licence, and the Respondent relied on the Applicant’s conduct in January 2020, when, it was alleged, he had been physically violent and intimidating towards Lisa; and, that when Police seized the Applicant’s firearms, the magazine of one was later found to contain live ammunition, with a live round in the chamber. Each allegation is discussed below.

Allegations of violence/intimidation

9. It is common ground that on 20 January 2020 the Applicant and Lisa were at their rural property with a number of other members of the Applicant’s family – his brother, and daughter-in-law, Stacey and her daughter. At the time, the Applicant and Lisa were separated but still living under one roof. The allegations of violence relate to two incidents that night.

10. Firstly, the Applicant was alleged to have intervened in a fight between Lisa and Stacey. It was alleged that, in doing so, he had pushed Lisa away from Stacey by the throat (first alleged assault). At some stage, the Applicant allegedly said to Lisa: “That’s one for the Fords. You’re dead”. The second allegation was said to have occurred later that night, namely that the Applicant had approached Lisa as she entered the bathroom, grabbed her by her hair and hit her head into a door twice (second alleged assault). The allegations resulted in the Applicant being charged with Stalk/intimidate intend fear physical etc harm (domestic), and also Assault occasioning bodily harm (DV) in respect of the second alleged assault. He was also made subject to a Provisional Apprehended Domestic Violence Order (PAVO) because of the allegations. The Applicant strongly denied the allegations and the charges were heard before the Casino Local Court on 21 May 2021. The Applicant was found not guilty of both charges which were dismissed, as was the PAVO.

11. Nonetheless, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences were not charged or have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.

First alleged assault and the allegation of intimidation

12. At about 10:30 pm Lisa and Stacey were arguing in the kitchen area of the main dwelling. Lisa admitted to being loud in her argument with Stacey and to using some bad language. Lisa had a can of Coke in her hand; before the Magistrate, Stacey said that Lisa had thrown the Coke onto her shirt. According to the account given by Lisa to attending Police, while she was arguing with Stacey, the Applicant intervened and grabbed her by the hand and squeezed the can of Coke. He then grabbed her around the throat and pushed her forcefully backwards against the fireplace.

13. Lisa left the kitchen and phoned ‘000’. The transcript of the call records that she complained that the Applicant had just grabbed her by the throat in the kitchen, and that she was seeking Police assistance because he had attacked her before. A short time later Lisa made a second ‘000’ call, alleging again, amongst other things, that that the Applicant had grabbed her by the throat and walked [her] backwards. In a call to the Ambulance Service later that evening, the Applicant again alleged the Applicant had grabbed her around the throat. Lisa said that other people had previously witnessed the Applicant grab her by the throat, but no statements from them were available, nor were they called before the Magistrate, nor before me.

14. Lisa gave evidence of the alleged assault in the Local Court proceedings, although the Applicant did not. Lisa was not called to give evidence before me. Stacey gave evidence before the Magistrate that Lisa was yelling and swearing aggressively, that she threw the contents of the Coke can at her and that the Applicant had intervened by positioning himself between her and Lisa, with his back towards Stacey and facing Lisa. When he did so, Stacey said, she left the room, although Lisa said Stacey did not leave the room. Despite referring to this positioning several times, Stacey made no reference to the Applicant touching Lisa in any way.

15. Before me the Applicant said that Lisa was verbally abusing Stacey and he had intervened by standing between them. He said he put his hands on Lisa’s upper chest, although later said he had used one hand only. He denied putting his hands on Lisa’s neck, as she claimed. He said he pushed her 2-3 steps back. It was unclear though if there was in fact any violence threatened by Lisa against Stacey, other than the possibility of being sprayed with the contents of the Coke can.

16. The Applicant made recordings on his phone during the evening, which he said in his evidence was because Lisa had trouble telling the truth. In relation to the first alleged assault it records:

Lisa: If you’d stayed sober, youse would be much better. This wouldn’t be happening. He wouldn’t be grabbing me by the throat.

Lisa: So that gives you the right to grab me by the throat. Applicant: No, you were about to attack Stacey.

Lisa: … because you grabbed me around the throat. Applicant: You were about to attack Stacey.

Lisa: [you] came back and grabbed me around the throat. Applicant: Because you were attacking her.

17. The Respondent submitted that in none of the above conversations did the Applicant deny Lisa’s accusation that he grabbed had her by the throat. Rather, he sought to justify his action on the basis that she was going to attack Stacey.

18. On another video taken by the Applicant and which is recorded on the BWV (in which no pictures can be seen but the audio recording is clear) the voices of Lisa and the Applicant can be heard.

Lisa: You’ll be next in the car. You won’t have any say. Because you grabbed me around the throat.

Applicant: You were going to attack Stacey.

Lisa: No, I never attacked Stacey. I can show you exactly what happened. She’s got nothing over her. Oh what, she’s going to wet her top now?

Lisa: Yeah, Fords stick together, eh?

Applicant: Yep, that’s what we do.

19. The Respondent submitted that Lisa was observing Stacey wetting her top to simulate the Coke attack. I do not accept that this necessarily follows. In any event, it was not put to Stacey in cross examination before the Magistrate that her top was not wet by the Coke allegedly thrown by Lisa. The Respondent also submitted that in the BWV there is no trace of Coke on Stacey’s shirt. I was not able to form a view about whether this was the case or otherwise. In any event, there was no clear timeline that might indicate when the recording was made in relation to the alleged incident, such that a wet shirt might have been expected.

20. Police attended the scene and spoke with Lisa, who conceded that she has an anxiety condition; she also told a ‘000’ operator that she suffers depression. Police did not observe any injuries to Lisa. The COPS Event in relation to that attendance records that Lisa had walked off and refused to speak with Police further about the incident. After speaking with Stacey and the Applicant, the Police left. No charges were laid.

21. Lisa made a third call to ‘000’. Amongst other complaints, she said that the Police officers who had attended were not listening to her account of events. Lisa reported in the call that after the Police had left the scene the Applicant said to her:

“One for the Ford’s’’ and “You’re dead.’’

22. As a result, the Police were deployed to the premises for a second time.

23. In his evidence before me the Applicant said he could not remember saying that that night. He said that in the audio he meant only that they look out for each other. I accept this explanation which is inconsistent with Lisa’s assertions to the effect that the Applicant and Stacey and others conspired against her.

24. Lisa claimed that the Applicant had hurt her before but there were no details of this allegation; there were no Police records to that effect, nor any other corroboration.

Second alleged assault

25. Lisa claimed that after the Police had left on the first occasion and it appeared that everyone was asleep, she went to the shower-room, the door of which is adjacent to the door to the Applicant’s bedroom. She claimed the Applicant emerged from his room, grabbed her by the hair and drove her face into the shower-room door (although she later said the doorframe), causing injury to her face, neck and hair. Lisa stated that after this assault she stayed in the shower-room, and did not leave it until sometime later when she heard the Applicant outside speaking with the others. She returned to her bedroom and called ‘000’ for the fourth time. According to the transcript Lisa reported that the Applicant had bashed her, “busted” her mouth and “busted” into the bathroom door and ripped her hair out.

26. According to the transcript of Lisa’s call to the Ambulance Service, she said that the Applicant had “bashed my head … the door…and he ripped my hair out” and “he grabbed me and rammed my head into the … door”. She said she thought she had a “busted” mouth and when asked if any other part of her body was injured, said “my forehead”. In the ambulance call Lisa claimed that she had told the Police that the Applicant had weapons that weren't properly stored. An ambulance was despatched to the property.

27. By the time the Police arrived for the second time, Lisa was seated in the ambulance out the front of the home. The extent of her injuries can be seen on the BWV of the interview, and also, in a photograph of her in the ambulance which was taken by Senior Constable Steele. Police took a statement from her, which was recorded on the first BWV in which Lisa described how she sustained her injuries. She told Police that when she went to the shower the Applicant grabbed her by the back of the hair and hit her into the door. She remembered seeing some hair on the ground. Senior Constable Steele gave evidence that when he was in the ambulance with Lisa he witnessed her run her fingers through her hair and a clump of hair came out and she threw it on the floor of the ambulance. Unfortunately, that was not captured by the BWV. The photograph of that clump of hair was in the material before me. In her evidence before the Magistrate, Lisa described that the Applicant had rammed her head into the timber doorframe at least twice, and that her hair came out and was on the floor, where she left it. Before the Magistrate Senior Constable Steele’s evidence was that, following Lisa’s claims, Police inspected the bathroom where the assault was said to have occurred and could not see any blood or human hair. Before me the Applicant said that neither he nor anyone else had cleaned up the shower. Lisa’s evidence before the Magistrate was also that there was so much blood from her lips that it spilled “all over” her light blue shirt and over her phone screen, and was “dripping in splatters” onto the quilt in her bedroom. There was no evidence that Police observed this.

28. At the time of his arrest, and captured on the BWV, the Applicant’s explanation as to the cause of Lisa’s injuries was that she had “obviously done it to herself”. However, despite this explanation as to the cause of Lisa’s injuries, it was not put to her in cross-examination before the Magistrate that her injuries were self-inflicted. Before me, the Applicant said that Lisa had gone outside sometime after 10 pm to feed her 8 dogs from the shed in which the dog food was stored. He could offer no explanation for her injuries other than that she may have walked into something while outside in the dark.

29. It was put to Lisa in cross examination before the Magistrate, that after everyone, including the Applicant, had gone to bed, she had lost her temper, gone to his room, and lashed out at him, hitting him in the face, causing his nose to bleed, following which he had pushed her out of the room. Lisa denied this. The Respondent submitted that the Applicant’s assertions that this had occurred constituted an admission on his behalf that there was physical contact by the Applicant upon Lisa. The question that “He then pushed you out of the room?” would, it was submitted, necessitate the Applicant getting out of the bed, and somehow pushing Lisa “several metres” from the centrally positioned bed through the door to the hallway. However, from the BWV the room did not appear to me to be at all large, and certainly not “several metres (into the hallway)”.

30. The Respondent submitted the Applicant did not mention that he had pushed Lisa out of his room to Police. The Applicant had complained to Police, as evidenced in the BWV, that Lisa had come into his room and had punched him in the face. Before me he said that he was lying in bed and was a bit shaken by what had occurred earlier. He said the door was opened and Lisa entered and bashed him in the face with her fist causing his nose to bleed. He said he pushed her off, and she left the room of her own accord and he locked the door. The Applicant said that he had then positioned a glass of water such that if anyone came into the room again it would fall to the floor. He denied pushing Lisa out of the room. I do not think though that much turns on whether the Applicant may have pushed Lisa out the door or only off him. In either case, if the attack occurred as the Applicant alleged, the Applicant was defending himself against Lisa’s assault.

25. Senior Constable Steele’s evidence was that he did not observe any blood or injury to the Applicant’s nose. Curiously, despite taking lengthy phone videos of Lisa’s interaction with Stacey and others, and apparently sending text messages to himself as to what he heard and saw, the Applicant did not take a ‘selfie’ of his alleged bleeding nose. Before me he said that he did not take a photograph because he was too busy trying to stop the bleeding; he denied that there was no photograph because there was no bleeding. He produced one bloodied tissue to Police which he invited them to take as evidence and suggested DNA testing to confirm that it was his blood, but they did not do so. Stacey gave evidence before the Magistrate that the Applicant complained to her that Lisa had come into his room and hit him, and that she had seen his bloodied nose and he was holding a bloodied tissue to his face.

Conclusion in relation to the alleged assaults and intimidation

32. It is difficult to come to view about the alleged intimidation in the absence of evidence from Lisa; the Applicant’s evidence was that said he could not remember saying those words that night. In any event, he said that he meant only that they look out for each other. I accept this explanation, although I appreciate that Lisa may not have seen it that way in circumstances where their relationship had deteriorated and the Applicant was supported that night by his family.

33. The evidence of the Applicant and Stacey on the one hand and the accounts given by Lisa in relation to the alleged assaults are almost completely contradictory, especially in relation to the second alleged assault. It was submitted on the Applicant’s behalf that Lisa’s version should not be accepted. I was invited to assess her demeanour in the PWV. I agree that she appeared agitated in the Applicant’s recordings although somewhat more subdued in the ambulance. The transcripts of the four ‘000’ calls and her call to the Ambulance Service were difficult to follow, but as she was phoning in a state of apparent distress, and the audio of the calls was not available, it is difficult to come to a view about whether her incoherence was because of being traumatised or otherwise. In her interview with Police she was also somewhat rambling, in circumstances that she had obviously suffered a head injury, however caused. She was, however, consistent in her contemporaneous reporting in relation to the first alleges assault, that the Applicant had grabbed her by the throat: the account given by Lisa to attending Police, the following ‘000’ call, the next ‘000’ call, and the call to the Ambulance Service. I note that there was no record of marks on Lisa’s throat being seen by Police.

34. Somewhat unhelpfully, Lisa chose not to co-operate with Police when they attended in response to her calls about the first alleged assault. Before me the Applicant persisted in his denial of having grabbed Lisa by the throat but conceded, for the first time, that he used one (or perhaps both) hands to push Lisa away from Stacey and 2-3 steps backwards. Stacey, in her evidence before the Magistrate said nothing about the Applicant touching Lisa at all during the altercation in the kitchen. The Applicant’s admission is to be preferred to Stacey’s evidence. In view of the Applicant’s concession, I find that, as a means of intervening in the dispute between Lisa and Stacey, the Applicant pushed Lisa away from Stacey and 2-3 steps backwards. While this may constitute an assault, I accept that the Applicant pushed Lisa in order to intervene in the argument between her and Stacey.

35. The second alleged assault is more problematic. It was submitted on the Applicant’s behalf that Lisa’s account should not be believed at all. There was an absence of forensic evidence to support Lisa’s claim, that is, there was no blood or hair in the bathroom, as she alleged. To suggest that the Applicant or other family members cleaned up the shower room is speculative, and, if forensic analysis were to be undertaken, such efforts would have been fruitless. Furthermore, there was no evidence of any observable damage to the door/doorframe – if there had been damaged as would be consistent with Lisa’s account, it could not have been repaired between the time of the alleged assault and the Police inspection. There was no evidence provided of blood on her shirt, her bedspread or her phone.

36. The Applicant's account that it was he who was attacked is supported by the bloodied tissue that he produced and Stacey’s evidence. It was submitted, and I agree, that the Applicant’s preparedness to produce to Police the tissue, which could then be subjected to DNA analysis to determine if it was his blood, is strong evidence that the Applicant suffered a bloodied nose as he claimed, notwithstanding that Police did not observe any blood on him, nor any injury to his nose, nor more than one tissue. As to whether the Applicant manhandled Lisa out of his room is, in my view, of relatively little consequence; on his account, he had pushed her off him, in circumstances where she had hit him in the face, bloodying his nose.

37. The Applicant’s demeanour in the BWV, by comparison with Lisa’s, appears to be quite calm and he is co-operative with Police. Lisa’s telephone calls to ‘000’, as observed above, were rambling, and on the first visit by Police, she walked away from Police. Lisa told Police she had not taken her medication that evening.

38. The Respondent submitted that there is no reasonable explanation for Lisa’s injury. I agree that the suggestion that her injuries were self-inflicted or the result of some misadventure is, frankly implausible. Still, I cannot be satisfied, even on the balance of probabilities, that the injury to Lisa was inflicted by the Applicant in the manner she claimed.

Failure to safely store weapons

39. In the second ‘000’ call Lisa told the operator that “they” (presumably the Applicant and the other family members) had been trying to “lock up the gun”. Also, Lisa said the Applicant never locks his guns away and that his two weapons might be found on the seat of the ute or on top of the rubbish bins. Lisa also referred in the ‘000’ calls to the Applicant’s poor firearm practices when asked about whether she had any concerns for her own safety. It was submitted on the Applicant’s behalf that Lisa had not been called as a witness in these proceedings and insofar as she alleged that the guns were left around, that evidence had not been tested. Other than Lisa’s untested assertion, there was no evidence that the Applicant had left his firearms unsecured as she claimed; certainly, when the Applicant’s firearms were located by Police, they were secured in his firearms safe.

40. The Applicant said that he had purchased the property in 2017. As could be seen on the BWV, the firearms safe was located in a cupboard in the ‘cottage’, a small dwelling with an entry separate to the main house. The gun safe was said to be attached to the floor of the structure by a coach screw; it had been inspected and approved by Police as suitably fixed. There was no contention that the gun safe was non-compliant.

41. The only set of keys to the safe were ordinarily stored in a small box, also located within the cottage. At some point during the night the Applicant took the safe keys and put them under the pillow in his bedroom. The Applicant was seen in the BWV to take the keys from under his pillow when the Police required him to surrender his firearms.

42. When Police went to the cottage with the Applicant to retrieve his firearms, the cottage was locked from inside, it being occupied by Stacey and other family members, including a young person. It might be said that, prior to the Applicant removing the keys from the cottage and putting them under his pillow, he had left his safe keys in a location accessible by others; there was no evidence that Stacey and the other family members were licenced to access firearms. The Applicant told Police the guns were unloaded.

43. A few days later, upon opening the Applicant’s firearms cases which had been seized, Police discovered that the magazine of one firearm contained live ammunition in the magazine, with another live round in the chamber. The Applicant’s explanation was to blame Lisa for accessing the safe and loading the firearm in order to get him into trouble. Before me, the Applicant said that he had only said that it could have happened that way because Lisa was very vindictive. The Respondent submitted that the explanation was implausible. The Applicant wrote that he did not recall when was the last time he stored that rifle and could not explain how the firearm had been stored while loaded. It was submitted that it was simply an oversight.

44. The Applicant was charged with “not keep firearm safe”, to which he pleaded guilty.

45. There was no doubt that the Applicant’s firearms were stored in the safe. As can be seen on the BWV, the safe was difficult to open and the Police required the Applicant’s assistance to do so. From the BWV the Applicant can be heard to have specifically told the Police that the weapons were unloaded so, it was submitted, that must have been his belief. I agree that it is unlikely that he would have told Police that the firearms were unloaded, knowing that one was, because it would have been clear to him that Police were in position to check if his assertion was accurate.

46. The Applicant said he has held a Queensland gun licence “for decades”; he grew up on the land and works as a primary producer. He said he has never had any adverse allegations about his storage and or handling of firearms, and there was no dispute about that. He said that, as a result of such a long association with firearms it had been instilled in him to never leave a live cartridge in a rifle, and it was always his practice to unload a firearm prior to storage. Because of this, he said, he did not check the firearms before Police seized them. The more relevant matter though, is that he apparently did not check before the rifle was stored.

47. The Applicant professed to have adhered to safe-handling practices for many years. It remains, though, that he did not properly secure his firearms before storage. To suggest that Lisa may have tampered with the firearm is, in fact, an admission that Lisa had access to his firearms. That conceded access, in itself, amounts to a different failure to safely secure his firearms.

Other allegation: alleged mishandling of poisons

48. In the first BWV, Lisa, when asked by Police about whether she had any fears for her safety, responded that the Applicant had strychnine in the cupboard/buggy/glove box. In the second ‘000’ call Lisa told the operator that “they” (presumably the Applicant and other family members) had been trying to hide the strychnine. Lisa also referred to the Applicant not keeping poison secure in other ‘000’ calls when asked about whether she had any concerns for her safety. Other than that assertion, there was no evidence that the Applicant inappropriately handled poison.

Is the Applicant a fit and proper person to hold a firearms licence?

49. Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

50. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

51. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

52. It was conceded on the Applicant’s behalf, that if I was satisfied that the Applicant had assaulted Lisa in the second alleged assault, then the Applicant would not meet the fit and proper person test.

53. The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent submitted, in particular, that the Applicant was given to acts of violence; he had shown little regard to the safety of others with the way that he handled and stored poisons and left firearms unattended and loaded; he stored firearms in a fully loaded state; and he lied and fabricated stories to the Police to hide his actions.

54. There was evidence that the Applicant had engaged in an act of violence towards Lisa in the course of his intervention between Lisa and Stacey. I am not satisfied as to the other allegations of violence. I have found that there was no evidence of the Applicant’s mishandling of poisons, nor that he had left his firearms unsecured. I have not found the Applicant to have lied and fabricated stories to mislead the Police, other than to, somewhat bizarrely, claim that Lisa may have accessed his firearm in order to load it to get him into trouble.

55. There was no dispute that the Applicant has no criminal history, nor that he had had any adverse interactions with Police other than on the night of the above allegations. The Applicant’s uncontested evidence was that he has been a member of the Bonalbo community for over 4 years. In this time, he was said to have undertaken significant community-based activities such as volunteering at the annual Bonalbo Show, give time, work and cattle to the Mallanganee Camp Draft and he is an active member of the Bonalbo Hall Committee.

56. For these reasons, I am comfortably satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

Public interest

57. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.

58. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the “public interest” is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.

59. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

60. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. 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 [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

61. As observed above, prior to the safe storage matter the Applicant has no criminal record. The “public interest” factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

62. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] 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. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

63. The principle in Ward 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

64. The Applicant said that he seeks a firearms licence in this State, where he is now permanently resident, as he is a full-time self-employed primary producer and has only ever used firearms for occupational activities. He claimed that he is currently struggling without a firearms licence and he provided a recent example in relation to a cow, which, having fallen and broken its leg, was suffering immensely. The ordinary course would be to humanely put the cow down to avoid protracted pain and suffering. In the absence of his firearms, he had to drive to his neighbour’s property and seek his assistance to bring a rifle over to put down the cow. It was suggested to the Applicant in cross examination that an alternative was to use a bolt gun, for which a licence is not required. The Applicant said he was familiar with their use in the meat industry, but had never used one himself. He said that, in any event, it would be of no assistance against wild dogs - he had lost 5 cows to wild dogs so far this year. However, I agree with the view of Professor Walker SM in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [55] that while a captive bolt gun would provide a way of putting down injured stock, as the Respondent submitted, it is likely to be useless against vermin and feral pests. I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66].

57. Private interests such as the management of livestock and the control of vermin however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

58. The caveat in McGrath is that those on the land having access to firearms must be law-abiding. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, the Applicant and Lisa’s relationship, at least in early 2021, was a volatile one. On Lisa’s version of events the Applicant attacked her twice; on the Applicant’s version Lisa attacked him. They have now completely separated and the Applicant has re-partnered.

59. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence.

60. Serious allegations were raised about the Applicant’s conduct but, other than the failure to store his firearms safely, I am not satisfied, on the balance of probabilities, that the Applicant engaged in the conduct relied upon by the Respondent. I have made some worrying observations, though, about the access to the Applicant’s firearms which he has admitted, in addition to his failure to check that both his firearms were unloaded before being stored. This, in my view, establishes a real and appreciable risk to public safety.

61. I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicant at this time.

Conclusion

70. My conclusion is therefore that while the Applicant is a fit and proper person to hold a firearms licence, it would be contrary to the public interest for him to hold a licence at this time. This does not, of course, preclude him from making another 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: 14 March 2022