FXM v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 200

Hearing dates:

16 June 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication or disclosure, other than to the parties and their legal representatives, of the identity of the Applicant and of the Applicant’s parents, is prohibited.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing –- Public Interest – Fit and Proper Person

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)

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

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

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

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77

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

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

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

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

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

Sobey v Commercial Agents Board (1979) 22 SASR 70

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

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

Representation:

Mainstone Lawyers (Applicant)
Makinson D’Apice Lawyers (Respondent)

File Number(s):

2022/00253990

Publication restriction:

In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication or disclosure, other than to the parties and their legal representatives, of the identity of the Applicant and of the Applicant’s parents, is prohibited.

REASONS FOR DECISION

Introduction

1. The applicant seeks administrative review of the internal review decision of the respondent dated 2 August 2022 which refused his application for a Category AB Firearms Licence.

Background

2. On 18 September 2020 the applicant applied for a category AB firearms licence. On 30 August 2021 the respondent refused that application. On 17 September 2021 the applicant sought internal review of that decision. On 2 August 2022 an internal review decision was made, affirming the refusal, pursuant to section 11(3)(a) of the Firearms Act 1996 (the Act) and section 11(7) of the Act.

Evidence

3. The applicant tendered the following documents: a character reference by a colleague dated 5 October 2022, a statement by the applicant's mother dated 24 October 2022, a statement by the applicant dated 6 October 2022, a supplementary statement by the applicant dated 14 April 2023 and written submissions.

4. At the Tribunal hearing the applicant gave sworn evidence and was cross examined. At the outset of the hearing, the applicant’s solicitor applied for a non-publication direction protecting the identity of the applicant and referring to him by pseudonym. This application was based on the applicant’s role as a member of the special forces of the Australian Defence Force, which is described more fully in his statements. I am satisfied that the nature of that special forces role necessitates the protection of the applicant's identity and I have made an order pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 to that effect. The Applicant will be identified as, “FXM”.

5. The respondent filed documents pursuant section 58 of the Administrative Decisions Review Act 1997 and written submissions. The documents include a NSW police “criminal history - bail report” and several police records known as COPS events. The criminal history report shows that in February 2017 the applicant was charged with assault occasioning actual bodily harm in company of others. He appeared in the local court on the 8th of September 2017 and received a fine of $800. The matter was then taken on appeal to the District Court and on the 16th of August 2018 it is recorded as “without proceeding to a conviction: bond section 10: 15 months.”

6. The first COPS event is from 25 March 2007. It describes the applicant being involved in a fight outside licensed premises on that date. It states that the applicant was escorted away from the area by police in “the caged vehicle to prevent any further incidents from occurring”.

7. The next COPS event describes an incident on the night of 8 May 2016 It describes a violent scuffle involving the applicant and people who had been on the applicant’s property. It alleges the applicant punched a person several times to the face.

8. The next COPS event describes an incident on 6 April 2019 where it is alleged the applicant was part of a group of people suspected of being involved with illegal substances. Two of those persons were detained and searched by the police the applicant was taken to the main entrance and released

9. The next COPS event describes an incident on the 2nd of May 2016 in which the applicant is alleged to have confronted the rider of a motorcycle and struck him about the head.

10. The next COPS event describes an incident on 30 November 2021, in which it is alleged the applicant has entered a neighbouring property abused the neighbour and knocked a drink from their hand.

11. The applicant told the Tribunal the 2007 incident happened on the footpath outside a hotel when someone in a group of men “king hit” his friend. He said he was overwhelmed and ran. He said he did not throw any punches. He acknowledged the police put him in a cage vehicle.

12. The applicant said the incident with the motorcyclist occurred when he was traveling with his father, who was driving. He said the motorcyclist kicked the headlight and punched the side-mirror of their car. He said he got out of the car and approached the motorcyclist. He said, “he took off and I grabbed him”. He said, “I don’t recall if I grabbed his helmet”. The COPS event at page 21 of the s58 documents was put to him. It states the applicant admitted he “grabbed the front of the rider’s helmet” to prevent him from leaving and said he “did strike him a number of times around the helmet”. The applicant said, “I don’t recall saying that”. He said, “I did not hit the helmet or the upper body”.

13. As to the May 2016 assault, the applicant denied the allegations as detailed in the police facts sheet and said that on appeal it was reduced to a bond. His written statement reads, “I absolutely did not hit the man. I pushed and tripped him, which was confirmed in the evidence the man gave in court… the man was very confrontational and to be fair my father was too… I stepped between them to avoid a physical confrontation and the man swung a punch at me. I grabbed him to restrain him and he continued to swing punches wildly at me until we went to the ground.”

14. The applicant said the incident on 3 May 2021 involved people who used to be close family friends. He said he wanted to have a quiet word with that neighbour because “he almost hit my mother in his car while she was riding her horse and he then abused her. I went to ask him if he would show her the same respect I show his parents”. He said “I did not shout or knock the drink out of his hand. He said to me he would kill my mother next time. I did not react or shout. They called the police. I was not the aggressor. I do not have a problem controlling my temper.” The statement by the applicant's mother describes the aggression by the neighbour on this occasion. It relevantly states the neighbour said “next time when I am in my big truck, I will hit you and your horse and make sure I kill both of you. I stopped in front of my son’s house who also lives on that stretch of road as I was shaken by the threats. [my son] went to have a conversation over the fence with [the neighbour] to ask why he felt the need to be so aggressive and make such threats to his mother”.

15. The applicant said the alleged drugs related incident happened when he arrived to meet friends at a concert. He stated “police came over suspecting one of the group I was with of ingesting drugs. We were searched and no drugs were found at all. I had not taken any drugs and did not have any drugs in my position. The police let us go”.

Applicant’s submissions

16. It is submitted for the applicant, his only conviction, for the assault charge, was set aside on appeal and that the court was satisfied a s10 bond was appropriate on the, apparently less serious, facts as accepted by the court. It is also submitted there has been a considerable passage of time since that event which should be taken into account and the fact of the applicant’s Army Reserve service has “resurrected” his character. The nature of that service is described in detail in the applicant’s supplementary statement. It is clearly a highly trained role with considerable emphasis on the use and handling of firearms. The character reference from his military colleague attests to his good character and his ability as a soldier and the documents include a photo of his trophy award as “Most Outstanding Soldier” in his platoon in 2020.

17. The applicant is still an active Army Reserve member. It is submitted that “the Defence Force would not permit him to perform this role which, by its very nature, allows him to possess and use firearms, if he was not considered a fit and proper person to do so or that it would be contrary to the public interest”.

18. The applicant submits that two of the matters on the police record, “being his involvement in a fight and aggressive conduct towards a motorcyclist occurred in 2007 (over 16 years ago) and in 2016 (some seven years ago)…It is submitted the Tribunal should attach little weight to these events due to the lengthy period of time since they occurred and that the applicant was not charged with any offences by police resulting from same”. It is submitted the Tribunal should give weight to the fact that no action was taken by police against the applicant in respect of the incident with the aggression of the neighbour. His version of events is said to be corroborated by his mother's statement.

19. It is submitted that because of the specialised nature of the applicant’s Army role, the applicant is not subject to close supervision in the use of weapons and has great trust and responsibility placed upon him by Army to act appropriately in all circumstances.

Respondent’s submissions

20. The respondent submits the use of firearms within the Army Reserve is easily distinguished from the use of firearms in a personal capacity, due to the close supervision and purpose for which firearms are provided in the armed forces and so, little weight should be given to the applicant’s submission in this regard.

21. The respondent submits” the applicant’s pattern of threatening and intimidating behaviour” means the Tribunal “cannot be satisfied that, objectively, he is a fit and proper person to hold a firearms licence and cannot be trusted to have possession of a firearm with virtually no risk to the public safety”.

Legislative framework

22. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, 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

Section 11 of the Act relevantly provides:

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(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.

Consideration and findings

23. Under s 63 of the Administrative Decisions Tribunal 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. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).

24. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.

25. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

The public interest: section 11(7)

26. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives 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 choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

27. The applicant requires a firearm to hunt and to deal with feral pests and euthanise animals on his mother’s property. Private interests, however, are not the only matters to be 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. Consideration of public interest allows for matters going beyond an Applicant’s character to be taken into account. They 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]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] 1 VR 63. Accordingly, the applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

28. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) 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. Although Ward was a case on the “fit and proper person” test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

29. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

30. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

31. In this matter, the degree of risk can be gleaned from the police records. The applicant disputes almost all of the facts as alleged in those records. He says he was not involved in the 2007 fight where his friend was “king hit”. However, the fact is the police put him in a caged vehicle. He said in oral evidence he did not strike the motorcyclist on the helmet or upper body. In his October 2022 statement he denied striking the motorcyclist at all. However, he did approach the motorcyclist, he “grabbed him”, witnesses told police that the applicant and the motorcyclist were fighting and the police recorded the applicant stating “that he did strike him a number of times around the helmet as the rider was flailing his arms around”. In oral evidence he denied making that statement. I am satisfied the applicant deliberately left his vehicle, confronted the motorcyclist, took hold of the motorcycle and became involved in a violent struggle with the motorcyclist.

32. The applicant was charged with assault over an incident on 8 May 2016, there was a successful appeal and he was placed on a bond. He denies the police facts of the alleged assault. He says he stepped between the man and his father. He says he did not hit him. However, he states, “I pushed him and tripped him” and “I stepped between them to avoid a physical confrontation” (October 2022 statement).

33. The most recent incident occurred on 30 November 2021, where the applicant was reported to police for verbally abusing his neighbour. The applicant denies the allegation that he abused his neighbour and knocked a drink out of the neighbour’s hands. However, it was the applicant who approached the neighbour after hearing the neighbour had threatened to kill his mother. In oral evidence, the applicant said he did not threaten or act aggressively towards the neighbour after he made that threat. He said the neighbours called the police and he was not the aggressive one. His mother states the neighbour said to her “next time when I am in my big truck, I will hit you and your horse and make sure I kill both of you”. She then approached the applicant in front of his house further down the road and told him of this abuse by the neighbour and he then approached the neighbour. I am satisfied the applicant reacted to that threat by approaching and confronting the neighbour.

26. These various police reports are spread over a period of 14 years from 2007 to 2021. A common thread for these events is the applicant being at or involved in incidents of aggression and violence. The applicant denies any fault in respect of these incidents. I had the benefit of observing him give evidence and be cross examined. I am not satisfied that he was being wholly truthful in his evidence. He claims to have been overwhelmed and to have run away when his friend was ‘king hit’. However, the police saw fit to place him in a caged vehicle at that time. He claims he didn't strike the motorcyclist, however it is clear that he confronted the motorcyclist and took hold of the motorcycle. He claims he was not the aggressor in the incident which saw him charged with assault. However, it is clear that it was he who confronted the man who was arguing with his father. He claims to have acted in self-defence, however he admits to grabbing the man and pushing him to the ground. He claims the neighbour threatened to kill his mother but it is clear that it was the applicant who confronted the neighbour at or near the neighbour’s property. I do not accept his evidence that he acted calmly and without aggression in response to the neighbour’s threat to murder his mother. I am satisfied the applicant has demonstrated, over several years, impetuous behaviour and a propensity to act with aggression.

27. In all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant.

Fit and proper person – section 11(3)

36. 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.

37. 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].

38. 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 firearms licence the decision-maker is 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

39. The applicant is a soldier, highly trained in the use of weapons and with a very good service record. I accept that he is expert in the use and handling of firearms. However, even for a special forces soldier, the military use of weapons takes place within a highly disciplined and controlled system. It is not directly comparable with the private handling and use of firearms.

40. The fact of the applicant’s Army Reserve service is to his considerable credit, but it does not diminish the history of his aggressive behaviour. In view of that history, I am not satisfied 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.

41. For these reasons, I find that sections 11(3)(a) and 11(7) of the Firearms Act operate to exclude the Applicant from being granted or holding a firearms licence.

Decision

1. The decision under review is affirmed.

2. In accordance with s 64(1) of the Civil and Administrative Tribunal Act 2013, the publication or disclosure, other than to the parties and their legal representatives, of the identity of the Applicant and of the Applicant’s parents, is prohibited.

**********

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: 31 July 2023