Grant v Commissioner of Police

[2020] NSWCATAD 158

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Grant v Commissioner of Police [2020] NSWCATAD 158
Hearing dates:	18 June 2020
Date of orders:	23 June 2020
Decision date:	23 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The respondent’s decision to revoke the applicant’s firearms licence is set aside.
Catchwords:	ADMINISTRATIVE REVIEW – Firearms – Revocation of firearm licence – Where applicant found guilty of offence of cultivating prohibited plant - Whether applicant a fit and proper person to hold a licence – Whether it is in the public interest for applicant to hold a licence – Whether conditional release order in relation to offence warrants revocation of licence where order would preclude applicant from obtaining a new licence – Whether Tribunal needs to be satisfied that there are exceptional circumstances - Non-disclosure orders – Where non-disclosure orders made which prohibited disclosure of some evidence to applicant – Principles of open justice and procedural fairness –Approach to dealing with confidential evidence which has not been disclosed to the applicant
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW)
Cases Cited:	AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 Bellamy v Bellamy [2018] NSWSC 534 Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50. CYL v YZA [2017] NSWCATAP 105 Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 Hamshere v Commissioner of Police, NSW Police Force [2012] NSWADT 244 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Jubian v Commissioner of Police, NSW Police Force [2019] NSWCATAD 70 Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 Maloney v Commissioner of Police, NSW Police (22 November 2004, Administrative Decisions Tribunal, unreported) Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 R v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wilde v State of New South Wales [2015] NSWCA 28
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Kurby John Grant (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Cole & Butler Solicitors (Applicant) Maddocks (Respondent)
File Number(s):	2020/00063787
Publication restriction:	The publication of the evidence presented to the Tribunal in private session, and the publication of the confidential evidence and the confidential part of the submissions lodged by the respondent with the Tribunal on 9 June 2020, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. The disclosure to the applicant of the material referred to in the order above, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

reasons for decision

1. This is an application for review of a decision to revoke the applicant’s firearms licence. The licence was revoked by the Commissioner of Police following a court finding that the applicant was guilty of the offence of cultivating cannabis, and its making of a conditional release order in relation to that offence.

2. The applicant has held a firearms licence for about ten years without incident. He has produced many references testifying to his character and his safe use of firearms. I have found that there is virtually no risk in him holding a firearms licence. I have also rejected the respondent’s submissions that he is not a fit and proper person to hold such a licence, and that it is not in the public interest for him to do so.

3. Accordingly, I have decided that the revocation decision should be set aside.

Background

4. On 29 October 2018, Mr Grant was issued with a Category AB firearms licence, with an expiry date of 29 October 2020.

5. Mr Grant lives in a rural location and used his firearms licence for hunting pigs and eradicating feral animals on his own and other people’s properties. Whilst holding a firearms licence is not a requirement of his employment, his firearms licence allowed him to assist in his employer’s control program.

6. On 19 January 2019, Police found cannabis growing at Mr Grant’s property. Mr Grant pleaded guilty to the offence of “Cultivate prohibited plant – small quantity” under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). On 20 May 2019, the Local Court found the offence proven, without conviction. Mr Grant entered into a conditional release order for a period of two years.

7. A delegate of the Commissioner of Police (“Commissioner”) decided to revoke Mr Grant’s licence on 2 October 2019. That decision was affirmed on internal review.

8. Mr Grant applied to the Tribunal for a review of the Commissioner’s decision on 27 February 2020.

Relevant legislation

9. One of the underlying principles of the Firearms Act 1996 (NSW) is “to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety” (s 3(1)(a)).

10. A firearms licence may be revoked, relevantly:

1. if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence (Firearms Act, s 24(2)(c)) (“fit and proper person ground”);

2. if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence (Firearms Act, s 24(2)(d), Firearms Regulation, cl 20) (“public interest ground”); or

3. for any reason for which the licensee would be required to be refused a licence of the same kind (Firearms Act, s 24(2)(a) (“offence ground”).

11. A licensee would be required to be refused a licence, if applying for renewal of a licence, in circumstances where he or she was under a conditional release order for an offence of cultivation of drugs. This is because a licence must not be issued to a person who is subject to a good behaviour bond, in relation to an offence prescribed by the regulations (Firearms Act 1996 (NSW), s 11(5)(d)(i)). The offence of cultivating a prohibited plant under s 23(1)(a) of the Drug Misuse and Trafficking Act is a prescribed offence (Firearms Regulation 2017 (NSW), cl 5(2)(b)). A reference in the Firearms Act to a “good behaviour bond” is taken to include a reference to a conditional release order, by operation of s 104 and cl 77 of Sch 2 to the Crimes (Sentencing Procedure) Act 1999 (NSW).

12. The respondent relied upon the fit and proper person ground, the public interest ground and the offence ground to support the revocation decision.

13. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act 1997 (NSW), s 63(1)).

Hearing

14. The hearing was conducted by telephone. Mr Grant gave evidence at the hearing and was cross examined.

15. Prior to the hearing, the respondent had filed confidential evidence and submissions. On the respondent’s application, the Tribunal conducted part of the hearing in private to allow the respondent to make submissions about the confidential evidence (see Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), s 49(2)).

Confidentiality orders

16. There is express provision, in the Firearms Act, for evidence to be withheld from an applicant and from the public. Section 75(5)(a) of the Firearms Act provides that the Tribunal “is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11(5A) or 29(3A).” Section 75(5)(b) provides that, “ in order to prevent the disclosure of any such report or other information,” the Tribunal “is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant’s representative.”

17. The respondent did not rely upon s 75(5) of the Firearms Act in respect of the respondent’s application for a private hearing and application for non-publication and non-disclosure orders. Instead, it relied upon ss 49(2) and 64(1) of the NCAT Act. Section 49(2) provides that the Tribunal may order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. Section 64(1)(c) and (d) relevantly provide:

64 Tribunal may restrict disclosures concerning proceedings

(1)   If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

…

(c)   an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)   an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

18. Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that “[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise” (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, “the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing” (CYL v YZA [2017] NSWCATAP 105 at [94]).

19. The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It “may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice” (NCAT Act, s 38(2)). Section 64(1)(d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be “desirable.” The word “desirable” should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).

20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d):

“Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.”

21. In this case, I was satisfied that it was desirable to make an order for a private hearing in relation to the confidential evidence under s 49(2) and to make non-publication and non-disclosure orders under s 64(1)(c) and (d) of the NCAT Act (as set out on the cover page of this decision). This was because (as the respondent’s representative said in the open part of the hearing), the evidence revealed the identity of informants, related to current criminal investigations and was otherwise confidential. Further, the proceedings concerned issues of public safety. I considered that the Tribunal should be as well informed as possible when determining an application which may directly affect public safety.

22. It is desirable to make some comments about the Tribunal’s approach to the confidential evidence. The Tribunal is not bound by the rules of evidence. However, as Evatt J said in R v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256:

“this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth. No Tribunal can, without grave danger of injustice, sit then on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such do not bind, every attempt must be made to administer ‘substantial justice’.”

23. In circumstances where the applicant is not entitled to see the confidential evidence, I have taken an approach to that evidence which is designed to achieve, as far as possible, “substantial justice.” That is, I have given little or no weight to the following:

1. Allegations about the applicant, where the source of the allegations is not identified;

2. Evidence which is adverse to the applicant, where the applicant could have been, but was not, cross examined in relation to the substance of the evidence;

3. Speculative comments in the evidence.

24. It would be a denial of procedural fairness to make an adverse finding about a matter which was not put to the applicant in cross examination (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [51]). Whilst there may be some circumstances in which s 64(1)(d) of the NCAT Act implicitly permits such a denial of procedural fairness, I have not made adverse findings based upon the confidential evidence where I consider that a question about the substance of the evidence could have been put to Mr Grant in cross examination, without revealing confidential information.

25. I note that it would also be an error of law to make a finding based solely on an allegation, in that this would be a finding without any probative evidence to support it (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [49] and [51]).

Drug offence

26. There is no dispute that, if Mr Grant were to apply for a new licence now, or if he were to apply to renew an existing firearms licence, the Commissioner would be required to refuse the application because he is subject to a conditional release order for an offence of cultivating a prohibited plant. This, without more, provides a basis on which the Tribunal may decide to affirm the Commissioner’s decision to revoke Mr Grant’s licence. It is not in contention that the Tribunal has a discretion as to whether it should do so.

27. The respondent relied upon the Tribunal’s decision in Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [23], where Montgomery JM (as he then was) commented that “[i]t would be anomalous if a conviction, after the licence has been granted, is treated totally differently to a conviction before a licence application.” This comment has been referred to, with approval, by the Tribunal, differently-constituted, in Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [10] and Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 at [28].

28. I accept that, in certain respects, it may seem “anomalous” for a conviction or a finding of guilt to be treated differently before and after the grant of a licence. However, as Senior Member Walker said in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59], this situation “is not necessarily anomalous.” The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.

29. The respondent also relied upon the proposition that it would only be in special or exceptional circumstances that the discretion would be exercised in a way not to revoke the licence, where a licence holder was convicted of an offence (Hamshere v Commissioner of Police, NSW Police Force [2012] NSWADT 244 at [14] and [43], citing the unreported decision of Higgins JM in Maloney v Commissioner of Police, NSW Police (22 November 2004, Administrative Decisions Tribunal); Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [25]; Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155 at [22]).

30. I accept that the Tribunal has considered whether there are “special” or “exceptional circumstances” justifying revocation of a licence, in the cases relied upon by the respondent. However, those words are not used in the legislation. As Basten JA said in Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 at [12], “[t]he abandonment of the statutory language in favour of a paraphrase is to be deprecated.” Similarly, the Court of Appeal (Beazley P, McColl and Ward JJA) commented, in Wilde v State of New South Wales [2015] NSWCA 28 at [53], that “[c]are always needs to be taken with use of language which is different from the statutory text.” Hayne J made the same point in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 311-312 [92]:

As this Court has so often emphasised in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions. (footnote omitted)

31. Bearing in mind these comments, I prefer to approach the question of whether the Commissioner’s decision to revoke Mr Grant’s licence is the correct and preferable decision, by having regard to the terms of s 24(2)(a) of the Firearms Act in its statutory context. That context includes the Act’s principles and objects. As Deputy President Hennessy (as she then was) remarked, the “discretion should be exercised in a way which promotes the principles and objects of the Firearms Act” (Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23]).

31. I have referred earlier in these reasons to one of the underlying principles of the Firearms Act, being to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety (s 3(1)(a)). I have had regard to this overriding need when considering how to exercise my discretion.

32. Mr Grant relied upon references from:

1. Philip Tonkin, who said Mr Grant had helped him eradicate pests from his property for a large amount of the “20 odd” years that they had known one another, and that his behaviour had been admirable;

2. Sam Rohde, who stated that he had known Mr Grant for at least ten years, when he began eradicating pests on his family farm, and commented that Mr Grant was trustworthy and honest;

3. Lorrayne Fishenden, who stated that she had known Mr Grant for five years, that she had engaged him to eradicate feral animals, that he is “a trusted and respected shooter” and that she only engaged people who could demonstrate safe practices;

4. Briana Pring, Mr Grant’s fiancé, who has known Mr Grant for sixteen years, and who considered him to be “a man who stands by his word and actions”;

5. Debbie Grant, Mr Grant’s mother, who refuted certain allegations made against Mr Grant;

6. Ross Burling, the chief executive officer and director of Mr Grant’s employer (where Mr Grant has been employed for nearly four years), who commented upon his “ability and trustworthiness to perform tasks without supervision”; and

7. David Reibel, a manager with Mr Grant’s employer, who stated that Mr Grant “has always acted responsibly and safely around firearms” and “has always followed our safety protocols.”

34. These references provide general support for the propositions that Mr Grant is trustworthy and uses firearms safely. I also rely on the evidence that Mr Grant held a firearms licence for about ten years without incident.

35. [NOT FOR PUBLICATION]

36. [NOT FOR PUBLICATION]

37. The respondent relied upon evidence of a fist fight between Mr Grant and another man, Glen Knapen, which occurred on or about 14 April 2017. The respondent refers to the opinion of police officers that Mr Knapen’s injuries indicate that Mr Grant’s actions “went above and beyond what was necessary.” The respondent also relied, in the internal review, upon an allegation attributed to unidentified police officers that Mr Grant “may have been under the influence of a prohibited drug during the fight.”

38. Mr Grant’s evidence was that Mr Knapen had been “picking on” him and “wanting to start a fight.” He said that he acted in self-defence. Mr Grant was not charged in relation to the incident.

39. Mr Grant also gave sworn evidence that he has never consumed illicit drugs and he denied the police’s opinion that he was under the influence of prohibited drugs.

40. The respondent did not challenge Mr Grant’s evidence that he acted in self-defence, or his evidence that he has never consumed illicit drugs, in cross examination.

41. [NOT FOR PUBLICATION]

42. [NOT FOR PUBLICATION]

43. [NOT FOR PUBLICATION]

44. I have accepted Mr Grant’s evidence that he acted in self-defence in the fight with Mr Knapen and his evidence that he has never consumed illicit drugs. There is no evidentiary basis on which I could accept the police allegations that Mr Grant was under the influence of ice at the time of the fight. It would be procedurally unfair to do so in circumstances where this was not put to him in cross examination.

45. The respondent relied upon some other matters which were the subject of confidential evidence.

46. [NOT FOR PUBLICATION]

47. [NOT FOR PUBLICATION]

48. [NOT FOR PUBLICATION]

49. [NOT FOR PUBLICATION]

50. [NOT FOR PUBLICATION]

51. [NOT FOR PUBLICATION]

52. [NOT FOR PUBLICATION]

53. [NOT FOR PUBLICATION]

54. [NOT FOR PUBLICATION]

55. [NOT FOR PUBLICATION]

56. [NOT FOR PUBLICATION]

57. [NOT FOR PUBLICATION]

58. [NOT FOR PUBLICATION]

59. [NOT FOR PUBLICATION]

60. [NOT FOR PUBLICATION]

61. [NOT FOR PUBLICATION]

62. I do not consider that the circumstance that Mr Grant is subject to a conditional release order is an appropriate basis on which to revoke his firearms licence.

63. The primary concern of the firearms legislation is public safety. The evidence establishes that Mr Grant does not consume cannabis or other illegal drugs and that he has used firearms safely for a period of about ten years.

64. Mr Grant also gave unchallenged evidence that his firearm licence address is that of his parents and that his firearm is stored in a gun safe at his parents’ home. This means that his children do not have access to the firearm. He stated that his father is the only person with a key to the firearm safe and Mr Grant is unable to access the firearm without his father’s assistance. I accept this evidence. This provides an additional level of safety in respect of Mr Grant’s use and storage of a firearm.

65. I am satisfied that Mr Grant would pose virtually no risk to public safety if his firearms licence were reinstated (Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [28] and Jubian v Commissioner of Police, NSW Police Force [2019] NSWCATAD 70 at [71]). I note that the phrase “virtually no risk” is not to be understood as a gloss on the “fit and proper person” test (AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [7]).

Fit and proper person

66. The respondent also contends that the Tribunal should affirm the decision to revoke Mr Grant’s licence on the ground that he is no longer a fit and proper person to hold a licence.

67. The respondent relies upon the following conduct of Mr Grant to establish that he is not a fit and proper person:

1. He has come to the attention of the Police for a number of incidents since 2003, including allegations of trespassing, reckless driving, illegal hunting and offences for driving whilst suspended and excessive speeding;

2. He was involved in a fist fight with Mr Knapen which resulted in Mr Knapen sustaining serious injuries requiring hospitalisation; and

3. He has been found guilty of cultivating cannabis and has not been able to provide any reason as to why he was doing so or expressed any contrition for the offence.

68. In discussing the meaning of the expression “fit and proper person”, Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380:

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.

69. In the same case, Mason CJ stated at [63] that:

“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.”

70. In Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156, the High Court stated that fitness involved “honesty, knowledge and ability.”

Criminal offence

71. The finding that Mr Grant was guilty of cultivating cannabis is relevant to his fitness and propriety. It tends to suggest that he is not a fit and proper person to hold a firearms licence.

72. The circumstance that Mr Grant was found guilty of this offence is not determinative of fitness and propriety. As the Appeal Panel has indicated, “[t]he Tribunal would fall into error if it adopted a rule of universal application or even a general guideline that a person serving a sentence for a criminal offence should not be considered to be fit and proper or of good repute” (Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 at [36]). Here, of course, Mr Grant was not convicted of the offence but is subject to a conditional release order in relation to it.

73. Contrary to the respondent’s submissions, Mr Grant has expressed contrition for the offence. In an unsigned statutory declaration, which he adopted under affirmation at the hearing, Mr Grant stated in relation to the offence:

“I accept full responsibility for my actions and am remorseful and embarrassed by this and I am thankful that I received a non-conviction for the matter.”

74. This evidence was unchallenged and I accept it.

75. The unlawful conduct did not occur very long ago. This is a factor supporting the respondent’s contention that Mr Grant is not a fit and proper person to hold a firearms licence.

76. However, this is to be balanced against the facts that Mr Grant made a full admission to the offence and pleaded guilty at the earliest opportunity.

Fight with Mr Knapen

77. I have dealt with the evidence concerning the fight with Mr Knapen above. I have found that Mr Grant acted in self-defence. Violence is to be deplored and the evidence indicates that both parties suffered significant injuries. However, there is insufficient evidence to conclude that Mr Grant’s conduct in relation to that fight is such as to detract from his fitness and propriety. His evidence is that Mr Knapen “continually dragged” him to the ground.

78. The police did not charge Mr Grant in relation to the event.

Other matters relied upon by police

79. There are a number of other matters relied upon by the respondent as being of relevance to Mr Grant’s fitness and propriety. These are the “incidents since 2003,” which are the subject of COPS reports.

80. Mr Grant has addressed these matters in his evidence. I do not consider that they establish that he is not a fit and proper person to hold a firearms licence. The respondent did not consider that they did either, when the respondent granted Mr Grant a firearms licence in October 2018.

81. The first allegation is of trespassing. Mr Grant was fifteen years at the time and was being supervised by a man in his late thirties. He did not realize he was trespassing. There is an allegation of speeding in a vehicle in 2008, for which Mr Grant was not charged. This is twelve years ago and does not, in my view, affect Mr Grant’s fitness and propriety to hold a firearms licence in 2020. There is a disputed allegation of trespass in 2008, which Mr Grant has explained.

82. There is also an allegation that Mr Grant trespassed in 2017 whilst shooting pigs. Mr Grant states that he takes full responsibility for trespassing but states that he was trying to retrieve his dog from the property at the time. This evidence has not been challenged.

83. Mr Grant was in possession of a stolen firearm. His father received it from a man called Jeff Dietrich. Mr Grant registered it during an amnesty and retained possession of it. In October 2018, he made arrangements for Moree Police to store his firearms because his licence had expired. The police informed him that the firearm had been stolen. Mr Grant then indicated that he did not want anything to do with it. Mr Grant’s evidence as to the stolen firearm was not challenged and I accept it.

Character references

84. Mr Grant’s character references are referred to above. The respondent submits that the references provided from his managers should be given little or no weight because they do not demonstrate an awareness of the circumstances giving rise to the revocation of Mr Grant’s firearms licence, in particular the charge of cultivate prohibited plant. In addition, the respondent says the references are imbedded within a personal association or friendship with Mr Grant.

85. Following these submissions, Mr Grant provided the references from Mr Tonkin, Mr Rohde and Ms Fishenden. These are people for whom Mr Grant has worked, eradicating pests. I take these into account as testaments to Mr Grant’s trustworthiness, honesty, reliability and safe working practices.

Conclusion

86. Mr Grant’s commission of the offence of cultivating prohibited plants is the most significant circumstance which points to a lack of fitness and propriety to hold a firearms licence. However, taking into account all of the circumstances, I am not of the opinion that he is no longer a fit and proper person to hold such a licence. I take into account, in particular, his contrition for the offence, his guilty plea and the character references, particularly those of Mr Tonkin, Mr Rohde and Ms Fishenden.

87. Mr Grant is a father of two children, in a stable relationship and in stable employment. He has the support and regard of his family, his employer and other members of the community.

88. Mr Grant answered questions during cross examination frankly, even when this was against his interests. For example, when asked whether he planted the cannabis the subject of the offence, he said that he did. This is consistent with other evidence indicating that he has cooperated with police, including in relation to the stolen firearm.

89. I am satisfied that Mr Grant displays “honesty, knowledge and ability.” He is a fit and proper person to hold a firearms licence.

90. Accordingly, this is not a ground which warrants the revocation of Mr Grant’s firearms licence.

Public interest

91. The respondent submits that I should affirm the revocation decision on the basis that I should be satisfied that it is not in the public interest for Mr Grant to continue to hold a firearms licence.

92. The respondent submits that, when considering what is in the public interest, I should consider the underlying principles and objectives of the Firearms Act, the strict controls under that Act, the concern of the licensing regime with protecting the public, and the need to give public safety paramount consideration. I accept that submission.

93. The respondent relies upon a number of matters as relevant to the public interest. These include the offence of cultivating a prohibited plant, suspected drug use, the fight with Mr Knapen, Mr Grant’s “history of trespass on private property” and that Mr Grant’s conduct as a whole would indicate a lack of regard for the law and public safety.

94. I have dealt with these matters above. I am not satisfied that Mr Grant’s conduct as a whole indicates a lack of regard for the law and public safety.

95. Accordingly, I am not satisfied that it is not in the public interest for Mr Grant to continue to hold a firearms licence.

Conclusion

96. For the above reasons, the correct and preferable decision is to set aside the decision to revoke Mr Grant’s firearms licence.

Orders

97. The Tribunal makes the following order:

1. The respondent’s decision to revoke the applicant’s firearms licence is set aside.

**********

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: 23 June 2020