FVS v Commissioner of Police

[2023] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FVS v Commissioner of Police [2023] NSWCATAD 229

Hearing dates:

31 May 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J D Little, Senior Member

Decision:

1. The decision to revoke the Applicant's firearms licence is affirmed.

2. The publication of the Applicant’s name in these reasons is prohibited.

3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

4. A copy of these reasons, without redaction, shall be released to the respondent.

Catchwords:

Firearms Act - firearms licence - refusal of licence - contrary to the public interest

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Director of Public Prosecutions v Smith [1991] VicRp 6

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

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

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

Texts Cited:

None

Category:

Principal judgment

Parties:

FVS (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)

Representation:

Self-represented (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00246392

Publication restriction:

1. The publication of the Applicant’s name in these reasons is prohibited.
2. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.
3. A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

1. This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to revoke his Category AB firearms licence (the Application).

2. For the reasons that follow, the correct and preferable decision is to affirm the revocation of the Applicant's firearms licence.

Background

3. At the time of the final hearing, the Applicant was a 77-year-old man and lived with his then partner and two children – his son aged 14 and his daughter, aged 12 in the family home. The Applicant’s safe storage address for his firearms was at this address.

4. The Applicant’s son is autistic and suffers from developmental delay. His daughter has learning difficulties.

5. [Not for publication]

6. [Not for publication]

7. Over the course of 2021, the Police attended the Applicant’s home following numerous reports of domestic disturbances involving the Applicant’s daughter which involved the Applicant’s daughter threatening and causing harm to the Applicant and the Applicant’s partner as well as being the victim of violence from her mother and brother.

8. On 17 February 2021, police attended the family home following reports of yelling and loud screaming in the street over several hours. During this visit described above, the Applicant’s partner informed the police that her daughter had been yelling and throwing things around the house. Around this time and following concern about the Applicant’s daughter’s absence from school, the Department of Communities and Justice (DCJ) commenced providing support to the Applicant’s partner and family, particularly regarding safety concerns related to the domestic and family violence. Ms Melisa Brock commenced work as the Applicant’s partner’s “family worker”, and at the time of the hearing, continued in that capacity. Ms Jess Black of the local Family Support unit also worked with the Applicant’s partner and daughter given safety concerns related to domestic and family violence.

9. According to the police report, the police observed that the home was in a very dirty state. In a subsequent report of 22 April 2021, the police report described an infestation of cockroaches and a strong smell of urine in the house raising concerns of the safety of the environment for the children.

10. On 21 February 2021, the Applicant contacted the police for assistance and reported that his daughter had hit his partner with a broomstick. When the police arrived, the Applicant’s daughter was at a neighbouring residence calming down and informed the police that she had had a “meltdown” because she “was not getting her own way with regards to not attending school”. The Applicant’s daughter alleged that her parent assaulted her but the police deemed it lawful chastisement and noted that the Applicant’s daughter did not display any injuries consistent with physical abuse.

11. On 21 February 2021, the police seized the Applicant’s firearms and ammunition for a 28-day cooling off period as part of their investigation with regards to domestic violence and child at risk.

12. [Not for publication]

13. [Not for publication]

14. Around this time, Ms Brock and a colleague attended the family home of the Applicant to speak with the Applicant’s partner. The Applicant was also present along with two police officers. However, on 14 March 2021, the police were called to the family home again following reports of a female screaming. The Event Report records:

“Police checked on the welfare of both children and nil issues were noted at the time of attending and nil injuries sighted”

15. [Not for publication]

16. On 18 March 2021, during a welfare check by the Police, the Police asked the Applicant and his partner if either has assaulted their daughter. They both initially denied any assault. The Applicant’s partner then changed her answer admitting to biting her daughter on the left shoulder because her daughter was biting her. The Applicant explained that he used the walking stick to create distance between himself and his daughter when she is attacking them but that he does not hit her with it.

17. On this day, the police attended the Applicant’s daughter’s school and spoke with her in the presence of the Deputy Principal. According to the Event Report, the Applicant’s daughter confirmed that her mother had bitten her. The Applicant’s daughter is recorded as also informing the police that her mother slaps her on the arms and face. The report also notes that “it appears that the child is the aggressor in the incidents and the mother is retaliating with inappropriate behaviour”.

18. On 21 March 2021, the Applicant made a written request for the return of his firearms.

19. On 22 March 2021, the Applicant’s partner called the police with respect to her daughter’s conduct. According to the Event Report, the Applicant and the Applicant’s mother reported that the Applicant’s daughter and mother had an argument about the candy ‘mentos’ which escalated and the Applicant’s daughter threw a can of food which broke a window. The Event Report states that “no offences have been disclosed” but adds:

“The father of the children is quite old and requires a walking stick for mobility. The mother is currently in a ‘moon boot’ as a result of an injury. The father also appears to have old fashioned views on raising children and chastising them. He appears to be quite short tempered and demanding, even towards his partner.”

20. On 14 April 2021, police attended the family home and determined no police involvement was required.

21. On 16 April 2021, according to the affidavit of Ms Brock, the Applicant’s partner telephoned Ms Black, and informed Ms Black (who presumably informed Ms Brock) that the Applicant was allegedly feeling frustrated that he was not allowed to have his guns back and that the Applicant had told his partner not to ring the police in the future because it made them look like incompetent parents.

22. On 22 April 2021, the police again attended the family home following the Applicant contacting the police because of the Applicant’s concern that he his daughter could not be controlled. Upon their arrival, the police observed that the Applicant’s daughter was in an agitated state and was aggressively moving things around. Police observed that the Applicant was yelling at his daughter rather than trying to stop her. The Police feared that the Applicant’s daughter may hurt herself with a shovel and transported the Applicant’s daughter to hospital.

23. On 23 April 2021, the Applicant’s daughter was removed from her parents’ care by Police under s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act) because the Police were satisfied that the Applicant’s daughter was at immediate risk of serious harm.

24. On or around May 2021, the Applicant’s daughter was returned to her parents’ care. However, throughout the remainder of 2021, Department of Communities and Justice as well as the Police remained involved in the care of the Applicant’s children and were called out to the family home to deal with further domestic disturbances.

25. On 13 May 2021, according to an Event Report, the Applicant’s daughter had a violent outburst as a result of being scolded by her mother for hurting her brother with this behaviour continuing for two and a half hours. The Applicant’s mother sought the help of a neighbour who contacted the Police.

26. On 29 May 2021, Police again attended the family home to conduct an investigation with regards to concerns for the welfare of the Applicant’s daughter.

27. According to Ms Brock, on 3 June 2021, Ms Black visited the Applicant’s daughter at school. During this visit, the Applicant’s daughter informed Ms Black (who presumably informed Ms Brock) that she was sad because her mother and brother had been hitting her and she hit her mother and father whenever she could.

28. [Not for publication]

29. [Not for publication]

30. On 4 June 2021, the Applicant’s daughter disclosed to the Police alleged sexual abuse by her brother alleging that her brother had touched her on her genitals on top of her clothing or by pinning her arms behind her bac and pinning her down as well as hitting her bottom. The Applicant’s daughter stated this happened for a few minutes.

31. [Not for publication]

32. On 16 June 2021, the Commissioner, by her delegate, suspended the Applicant’s firearms licence under s 22 of the Act. The basis of this suspension, as submitted by the Commissioner in these proceedings was because of:

“Concerns held by the Police about [the Applicant’s] capacity to continuously and responsibly maintain control of his firearms due to his domestic circumstances, evidenced by the numerous domestic incidents in [the Applicant’s] home which required the attendance of the Police. The Commissioner also found that it was not in the public interest for [the Applicant] to possess firearms and that [the Applicant] was not a fit and proper person to hold a firearms licence”

33. On 11 July 2021, the police were again called. The Event Report records that the Applicant’s daughter had a “meltdown” at home because she was not allowed an ice cream and threw a number of items around the house before running away to a neighbour’s house. The report states with respect to the Applicant and his partner:

“… despite the love they have for her, they are unable to give [their daughter] the care she requires …”

34. On 31 August 2021, the police were called to the family residence following a report that the Applicant’s daughter had assaulted her mother by throwing objects at her.

35. On 3 May 2022, the Commissioner, by her delegate, revoked the Applicant’s licence pursuant to s 24(2)(a) of the Act (the Decision).

36. In the opinion of Ms Brock who is qualified by the Association of Children’s welfare to recognise and respond to domestic and family violence and provide crisis intervention and support as well as holding a diploma of Community Service and Certificate 4 Training and Assessment:

“[The Applicant’s children] have developed a dysfunctional family unit with little safety. Their traumatic experiences have shaped their development … [the Applicant] has not engaged in any capacity to address the safety concerns for his family.

In my opinion, [the Applicant] uses coercive control over [his partner]. He withholds money for groceries. He also withholds information that assists [his partner] to manage her Centrelink and Social Housing requirements. In my professional opinion, [the Applicant’s] guns should not be returned because doing so would cause psychological harm to [his partner] and, based on my knowledge of [the Applicant’s partner and children], may increase the risk of serious injury to one of them.”

37. [Not for publication]

38. [Not for publication]

39. According to the Affidavit of Ms Brock, the Applicant’s partner had indicated to Ms Brock that she was fearful of the Applicant’s guns being returned to him, that she does not want the firearms in the family home and that she wanted to separate from the Applicant but that he will not leave the family home irrespective of the fact that it was the Applicant’s partner who was the tenant on the lease of the family home.

40. [Not for publication]

41. On 26 May 2022, the Applicant lodged an application for internal review of the Decision pursuant to s 75(1)(c) of the Act. On 7 July 2022, the decision was affirmed by the Commissioner. In the internal review decision, it was found that it would not be in the public interest for the Applicant to hold a licence because of his domestic circumstances.

42. On 18 August 2022, the Applicant lodged the Application in this Tribunal under s 55(3) of the Administrative Decisions Review Act 1997 (the ADR Act).

43. [Not for publication]

44. Shortly before the hearing, the Applicant’s partner had advised Ms Brock that she wanted the Applicant to be taken off the housing certificate and gave the Applicant notice with two weeks to vacate. The Applicant informed the Tribunal that he did not yet have any plans as to where he was to live and had not made alternate arrangements other than being included on the emergency list for housing. He stated that he believed his son would probably want to live with him or at least he would be able to see his children on weekends and so he required housing in the same general area because the children were at school.

Legislation

45. The Act establishes a legislative framework regulating the possession, use, acquisition, and supply of firearms.

46. The power to revoke a licence is provided in s 24 of the Act. The Act specifies mandatory and discretionary grounds for which a firearms licence is to be revoked. In particular s 24(2) of the Act sets out the following discretionary grounds for which the Commissioner may revoke a firearms licence:

“(2) A licence may be revoked--

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b) if the licensee--

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

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

(iii) contravenes any condition of the licence, or

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d) for any other reason prescribed by the regulations.”

47. Clause 20 of the Firearms Regulation 2017 provides that the Commissioner may revoke a licence “if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

48. Section 3(1) of the Act provides guidance as to how the Act is to be administered and the context of the Commissioner’s power to revoke a licence. Section 3 declares that firearms possession and use is “conditional on the overriding need to ensure public safety”. Objects of the Act include to:

1. provide strict requirements that must be satisfied in relation to licensing of firearms; and

2. require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm. See also s 12 of the Act.

49. It is in this context that the Commissioner’s power to revoke a licence must be applied which requires a consideration of the public interest.

50. Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb)

51. The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(c) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one.

52. 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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).

Evidence

53. On 3 May 2023, non-disclosure orders were made with respect to certain confidential material relied upon by the Commissioner. To maintain that confidentiality, orders were made that the final hearing of the Application be conducted partly “open” (i.e being open to the public) and partly “closed” (i.e that part of the hearing be conducted in the absence of the Applicant, his legal representative, and members of the public).

54. With respect to the “open” part of the final hearing - in addition to the oral submissions made on behalf of both parties and the material lodged by the Commissioner pursuant to s58(1) of the ADR Act marked “R2”; a supplementary bundle marked “R3”; and a further supplementary bundle marked “R4”, the Commissioner relies upon:

1. Written submissions filed 17April 2023 marked “R1”; and

2. Affidavit of Mr Matthew Zimmer sworn 3 November 2022 marked “R5”; and

3. Affidavit of Ms Brock affirmed on 13 April 2023 marked “R6”.

55. In respect of the “closed” part of the hearing, the Commissioner relies upon:

1. [not for publication]

2. [not for publication]

56. The Applicant relies on:

1. The application form attaching a copy of the Internal review filed on 18 August 2022 and marked “A1”;

2. Written submissions in respect of the application for non-disclosure orders of the confidential materials filed 25 November 2022 and marked “A2”;

3. A document marked “A3” containing copies of FVS’s membership cards in:

1. Sporting Shooters Association of Australia;

2. NSW Restricted Game Hunting Licence; and

3. Hunter District Hunting Club.

4. Multiple supplementary handwritten submissions marked “A4”

5. A letter from HunterGenetics dated 2 August 2022 marked “A5”;

6. Bundle of documents beginning with a typed letter entitled “To whom it may concern” with attachments marked “A6”

7. Further supplementary written submissions filed on 31 May 2023 marked “A7” in response to the Commissioner’s written submissions;

4. Second further Supplementary written submissions filed 31 May 2023 marked “A8” with attachments

57. Additionally, the Applicant was cross-examined during the hearing by the Commissioner’s representative.

Submissions

58. In making the case that the Commissioner’s decision to revoke the Applicant’s firearms licence is correct and preferable, the Commissioner originally contended that:

1. The Applicant did not have a genuine reason under s 12 of the Firearms Act 1986 for possessing or using a firearm;

2. The Applicant is not a fit and proper person to hold a licence because he does not possess sufficient moral integrity to use and possess firearms and has breached the Firearms Regulation 2017 (the Regulation). In addition to the evidence of the Applicant’s personal and domestic circumstances, the Commissioner relies upon the following:

1. The Applicant nominated sports/target shooting, recreational/vermin control and primary production as his genuine reason for possession a firearm.

2. Under clause 15 of the Regulation, the Applicant was required to notify the Commissioner if his genuine reason for possessing or using a firearm could not be established within 14 days of becoming aware that he ceased to have a genuine reason. Under clause 16 if there was a change in the genuine reason.

3. The Commissioner contends that the Applicant breached the Regulation in failing to notify the Commissioner following the lapse of his sport/ target shooting membership as well as in failing to notify the Commissioner of the sale of his property on which he undertook primary production

3. It is contrary to the public interest for the Applicant to hold a firearms’ licence because he is of poor character, he does not understand or is unwilling to follow the strict controls imposed on firearm licensees and he has been and remains exposed to serious domestic and family violence; and

4. Additionally, there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances due to the serious domestic and family violence to which the Applicant remans exposed: See s 11(4)(a) of the Act.

59. However, during the hearing, the Commissioner abandoned the contention described at paragraph (1)– namely that the Applicant did not have a genuine reason under s 12 of the Firearms Act 1986 for possessing or using a firearm.

60. Conversely, the Applicant submitted that there was no basis to find that he was unfit or improper or that a licence would not be in the public interest because:

1. He had not had any issues in possessing firearms in 60 years.

2. While the Applicant agreed that his daughter had behavioural issues, the Applicant also emphasised that the domestic instances involving violence were between his partner and his daughter and/or his daughter and his wife being violent towards him. In those circumstances, there was no basis to conclude he might be violent if licenced to possess a firearm or otherwise be a threat to anyone.

3. He denied being violent towards his daughter and denied ever striking his daughter with his walking stick. He accepted that it was possible that he told the police in March 2021 that he used his walking stick “to create distance” but this would have been so that his daughter could not harm him. In his own words:

“I’ve never used a stick on a dog, horse or children. I refute that.”

4. He denied ever engaging in inappropriate behaviour towards his daughter or children and urged the Tribunal to find that he was a reliable, credible, and truthful witness.

5. With respect to the Commissioner’s contentions regarding breaches of the Regulation – he gave evidence that he had retained an accountant to assist with his affairs when he sold his property in 2008 including to change the registration of his truck from “primary production”. He had assumed that the accountant had completed the same for his firearms licence. While the Applicant accepted that there was a failure to notify the Commissioner, he referred to this as a mistake and oversight and the “only glitch on his record”. In the circumstances, the Applicant contended that it was insufficient to led to a conclusion that he was not a fit and proper person to hold a firearms licence.

61. In reply, and with specific respect to the Tribunal’s inquiry as to what weight should be given to the Applicant’s past domestic circumstances given the notice served on the Applicant to vacate the family home, the Commissioner submitted that:

1. Irrespective of the place that the Applicant resides, that the evidence supports that his partner will experience fear, that the Applicant exercises coercive control over her and the return of firearms to the Applicant would cause his partner psychological harm;

2. [not for publication]

Legal Principles

Fit and Proper

62. The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

63. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

64. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

65. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

66. They went on to say at 388:

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

67. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said:

“In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.”

68. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. `Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

69. The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

70. The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

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

71. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

Consideration

72. First, with respect to the Commissioner’s additional contentions relating to:

1. The allegation that the Applicant may not personally exercise continuous responsible control over firearms, and

2. The allegation that the Applicant is not a fit and proper person.

73. I find as follows.

74. The evidence relied upon by the Commissioner did not satisfy this Tribunal of either contention because:

1. the evidence relied upon the Commissioner of allegations of assault as against the Applicant, the Applicant’s partner, daughter and/or son or allegations relating to his “living and domestic circumstances” generally does not amount to evidence supporting that there are instances where the Applicant has not exercised control over his firearms. There is no allegation nor even speculation in the evidence before the Tribunal that the Applicant may have allowed another to use his firearms or that he would do so in the future. Even if such a conjecture or speculation was made, it would be insufficient to found “reasonable cause to believe” the allegation. See LY v Commissioner of Police, NSW Police [2004] NSWADT 115.

2. in respect of the failure to notify, the failure to notify was a breach of the Regulation but conversely, the Applicant’s evidence (which I accept) was that he had understood that his accountant had notified the appropriate authorities with respect to the change of the Applicant’s status as a primary producer following the sale of his property in 2008. This being in the context of the accountant being retained to assist the Applicant with those affairs. In those circumstances, I reject the contention of the Commissioner that such non-compliance supports a finding that the Applicant has shown disregard for the regulatory scheme nor that he does not understand nor is unwilling to comply with the controls established by that regime.

3. With respect to the other allegations against the Applicant relating to his domestic circumstances and relationships with his partner and children as a basis to find that the Applicant is not fit and proper, while the Tribunal is to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64] as 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 - the difficulty in this case is that the only material in relation to the alleged incidents concerning the Applicant (as opposed to assaults occasioned by others) was that contained in

1. the open evidence of Mr Zimmer which went to computerised operational policing system (COPS) and the risk of disclosure of confidential material

2. Event Reports generated from COPS disclosed in the various section 58 bundles;

3. the open evidence of Ms Brock as described above; and

4. the confidential evidence as also described above.

4. In respect of the open evidence of Mr Zimmer, apart from his explanation the COPS system and his concerns regarding risk of disclosure of certain material, his affidavit does not contain any other evidence that relates to the Applicant’s character or conduct.

5. With respect to the Event Reports generated from COPS contained in the s 58 bundles, the vast majority of allegations in those reports pertain to the alleged conduct of the Applicant’s daughter and the alleged conduct of the Applicant’s wife – with one report pertaining to the alleged conduct of the Applicant’s son. The exceptions to this are as follows:

1. The allegation that the family home was unclean and an unsuitable environment for children. However, while that may have been the state of the home at that time, according to the oral evidence of the Commissioner’s witness, Ms Brock, this was not the case. Her evidence was that on the occasions she had visited the home, while she had observed that the home was cluttered, it was in a reasonable enough state not to make a report. She confirmed that she did not see any “filth” or “cockroaches”. Even if I disregarded this evidence in favour of the Events Reports (which I do not), this allegation of uncleanliness would not, in isolation, led to a finding that the Applicant was not fit and proper with respect of maintaining a firearms licence in any case.

2. The allegation of the Applicant’s daughter made on 21 February 2021 that the Applicant (and her mother) had assaulted her. However as observed in that same Event Report, the police deemed it lawful chastisement and noted that the Applicant’s daughter did not display any injuries consistent with physical abuse. In March 2021, the Event Report again states that nil issues were noted at the time of attending and nil injuries sighted.

3. [Not for publication]

4. The allegation that the Applicant is short tempered and yells at his daughter and that he does this rather than attempt to remedy his daughter’s behaviour. While evidence of a temper or aggression may be sufficient in appropriate circumstances to justify the revocation of a firearms licence, I find that these comments made by the Police in the Events Report is insufficient to satisfy me that the Applicant is a risk to public safety if licenced to possess a firearm.

5. The allegation that that the Applicant told his partner not to ring the police in the future because it made them look like incompetent parents. However, this allegation is inconsistent with the fact that the Applicant himself has, according to the Events Reports contacted the police on at least two occasions for assistance. Once before the alleged statement to his partner on 21 February 2021 and once afterward on 22 April 2021. The latter being only six days after the Applicant’s partner made the accusation.

6. [Not for publication]

7. [Not for publication]

8. With respect to the evidence of Ms Brock, I find that Ms Brock was an honest witness who attempted to assist this Tribunal. However, with the exception of Ms Brock’s oral evidence described at paragraphs 36 and 37 above, her evidence, in large part was evidence of events that she neither saw nor heard.

9. [Not for publication]

10. Most of the allegations, repeated by Ms Brock, are made by the Applicant’s partner at a time shortly prior to their separation (given the notice served on the Applicant to vacate); or allegedly by the Applicant’s daughter to the Applicant’s partner. Then, according to Ms Brock, the Applicant’s partner has told others before being recounted to Ms Brock who has then repeated those allegations in her Affidavit. In some cases, there is a further tier of communication where another social worker other than Ms Brock is told and then it is presumably repeated to Ms Brock who repeated it in her Affidavit. The Tribunal is not bound by rules of evidence, however, the Tribunal must still consider the sufficiency of the evidence in order to make factual findings and, in that context, consider the probative value of the evidence put before it.

11. Relevant to that assessment is the fact that the Applicant has given evidence and been the subject of cross-examination and denied the accusations of wrongdoing as relied upon by the Commissioner.

12. Also relevant is the fact there is evidence that the Applicant’s partner has been dishonest to police on at least one occasion as noted in the Event Report dated 18 March 2021 and described at paragraph 16. In these circumstances, the Tribunal would be cautious to accept disputed allegations based upon such indirect evidence attributable to the Applicant’s partner.

13. While I need only be satisfied as to the conduct on the balance of probabilities, in the absence of any evidence beyond that relied upon by the Commissioner, I am unable to be satisfied on the balance of probabilities in relation to the serious allegations made against the Applicant.

14. Accordingly, the Tribunal is not satisfied based upon the evidence before it that there is reasonable cause to believe that the Applicant is not fit and proper as a basis to revoke the Applicant’s firearms’ licence in circumstances where conversely, and in the words of the Applicant, “he had not had any issues in possessing firearms in 60 years”.

75. Secondly, with respect to the Commissioner’s submissions that it is contrary to the public interest for the Applicant to hold a firearms’ licence, I find as follows.

76. I find that the evidence supports that the Applicant exercises coercive control over his partner and, in that regard, I accept the evidence of Ms Brock. I accept her opinion, based upon her expertise, experience and observations that:

“In my opinion, [the Applicant] uses coercive control over [his partner]. He withholds money for groceries. He also withholds information that assists [his partner] to manage her Centrelink and Social Housing requirements. In my professional opinion, [the Applicant’s] guns should not be returned because doing so would cause psychological harm to [his partner] and, based on my knowledge of [the Applicant’s partner and children], may increase the risk of serious injury to one of them.”

77. The fact that the Applicant was separating from his partner as at the time of the hearing does not alleviate this risk.

78. [Not for publication]

79. On the evidence before me I find that the Applicant’s firearms licence should be revoked on the basis that it is not presently in the public interest for him to continue to hold the licence. I find there is a risk to public safety if the Applicant is given the privilege of continuing to have access to firearms. The correct and preferable decision is to affirm the decision of the Commissioner.

Anonymisation

80. Section 578A of the Crimes Act 1900 prohibits the publication of any matter which identifies or is likely to lead to the identification of the complainant victim in a prescribed sexual offence.

81. [Not for publication]

82. Additionally, the factual findings contained in this decision disclose the domestic and medical history of non-parties including that of the Applicant’s children. The information is of a personal and highly sensitive nature. Irrespective of the fact that the Applicant’s former partner’s name and the name of the Applicant’s children is not expressly disclosed in this Decision, the identification of the Applicant would allow identification of those non-parties given their relationship with the Applicant and make the personal and highly sensitive information publicly available. This outcome should be avoided, and those non-parties protected. Accordingly, I find that the name of the Applicant should be anonymised pursuant to s64(1)(a) of the CAT Act.

Orders

83. The orders I make are as follows:

84. 1. The decision to refuse the Applicant's firearms licence is affirmed.

85. 2. The publication of the Applicant’s name in these reasons is prohibited.

86. 3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

87. 4. A copy of these reasons, without redaction, shall be released to the Respondent.

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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: 24 August 2023