Hayes v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 234

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hayes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 234

Hearing dates:

22 June 2022

Date of orders:

14 July 2022

Decision date:

14 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

LICENSING – Firearms licensing – fit and proper person – public interest – multiple Queensland offences – proven but no conviction recorded

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2006

Firearms Regulation 2017

Weapons Prohibition Act 1998

Cases Cited:

Ainscough v Commissioner of Police [2021] NSWCATAD 106

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254
Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cook v Commissioner of Police [2021] NSWCATAD 204
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Edlington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 58

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director General of Social Security (1984) 1 FCR 353
McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Nicholas John Hayes (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicant)
Office of General Counsel, NSW Police Force (Respondent)

File Number(s):

2022/00039370

Publication restriction:

Nil

REASONS FOR DECISION

1. On 16 July 2021 the Applicant, Nicholas Hayes applied for a Category AB firearms licence. On 30 September 2021 the Respondent decided to refuse the application, on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to hold a firearms licence. The Applicant sought internal review of the decision but, when no response was received within 21 days, the internal review was taken to be finalised pursuant to s 53(9) of the Administrative Decisions Review Act 1997 (ADR Act). The Applicant then sought review by this Tribunal.

Relevant legislation

2. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

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

(c) to facilitate a national approach to the control of firearms.

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

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to 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,

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

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

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

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

...

(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, and

...

(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.

…

(5) A licence must not be issued to a person who:

…

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

...

4. Clause 5 of the Firearms Regulation 2017 relevantly provides:

Offences that disqualify applicants

(1) For the purposes of sections 11(5) (b) and 29 (3) (b) of the Act, the following offences are prescribed-

(a) An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under—

(i) the law of any Australian jurisdiction, or

…

(b) An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, being on offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under—

(i) the law of any Australian jurisdiction, or

…

(f) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond.

5. Section 11(7) provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

6. The Applicant provided an undated statement and a letter of apology dated 29 December 2021. He gave evidence and was cross examined.

7. The Applicant provided references from:

1. Adrian Salter dated 30 December 2021

2. Lindsay McDonald (undated)

3. Eric Thomas, President – the Australian Conservation Hunters Association dated 23 December 2021

4. Chris Sainsbury, President SSAA, Illawarra dated 21 June 2017

8. The Applicant also provided:

1. A copy of the Applicant’s internal review submissions dated 2 June 2018 in relation to an earlier firearms licence application

2. A report from Michael Kruger-Davis, psychologist dated 19 June 2018

3. Internal review submissions dated 30 December 2021

9. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.

Tribunal’s approach

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

CONSIDERATION

Applicant’s licence history

11. The Applicant was first granted a firearms licence in September 2008. He was granted a further licence in October 2013, which was to expire on 30 October 2018. On 5 September 2014 his licence was revoked, having regard to the offences, discussed below.

12. The Applicant applied again for a licence in August 2017, but his application was refused, again having regard to the offences and other matters. On 16 July 2020 he made his most recent application.

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

13. The original decision dated 30 September 2021 referred to various criminal charges that were dealt with by the Queensland Courts during 2014 and refused the application under s 11(3)(a) of the Act (fit and proper person) and s 11(7) of the Act (public interest).

Respondent’s contentions before the Tribunal

14. Before me the Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence nor is it in the public interest that he have a licence. The Respondent also submitted that the Applicant had committed breaches of the Act. The Respondent also submitted that the Tribunal should also consider the further mandatory ground of refusal under s 11(3)(d) of the Act, being the requirement that an applicant be a resident of NSW or about to become a resident of NSW. If the Applicant were found not to meet the residency requirements, then I would have no option but to refuse his application. Accordingly, I dealt with that contention first.

Current residency

15. Section 11(3)(d) of the Act provides that a licence must not be issued unless the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. The Respondent submitted that the preponderance of the available evidence indicates that since about July 2011 the Applicant has resided in Queensland, not NSW.

16. Before me the Applicant gave a broad outline of where he has lived and worked. He said he had purchased a property in the Illawarra area (the Illawarra property) in 2007 or 2008, in which he lived from 2010. He worked in mines in the Illawarra area. Then, at the end of 2012 he obtained a job in the mines in Queensland on a fly in/fly out (FIFO) basis – 5 days on, 4 days off, and then 4 days on, 5 days off, and rotating between day and night shifts. The location was about an hour north of Emerald and about 2.5 hours west of Rockhampton. At the mine he had a room, which changed from time to time; he regarded the Illawarra property as his home. To get back to the Illawarra property he would drive to Emerald and fly to Sydney and then, make his way home. The travelling was very expensive, so, in late 2012, he secured accommodation at Emu Park on the coast in Queensland. For about 10 months in 2013 he and his partner lived in Emu Park, and he would live there with her when he was not working (and staying) at the mine. His partner returned to the Illawarra property in about September 2014 (sic) and he resumed his FIFO work regime, with the Illawarra property as his home. Because of the cost of returning to the Illawarra property, he would sometimes undertake overtime rather than return home.

17. On 5 February 2013 Police attended the address nominated by the Applicant as being the place of safe storage of his firearms to conduct a safe storage check, namely the Illawarra property, but there were no firearms there. The Applicant's father reportedly told Police that the Applicant had moved to Yeppoon in Queensland some 12 months earlier and had taken all his firearms with him.

18. The Respondent also relied on the Applicant's Facebook account, which recorded that he lives in Yeppoon, Queensland. I have placed little weight on the Facebook entry as it was unclear when it was made, especially as the Applicant’s evidence was that it was not accurate and that he had taken it down, whereas the Respondent submitted that the post was only recent.

19. In 2018, the Applicant said, he returned full time to the Illawarra area, having obtained work in the mine in that area. This aspect of the Applicant’s evidence was unchallenged. I am satisfied that, since 2018, and relevantly, at the time of the present application for the firearms licence, the Applicant has been a resident of this State.

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

20. 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.

21. 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].

22. 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], Higgins JM stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

Offences

23. The Respondent submitted that the Applicant had a history of offences, any one of which, had a conviction been recorded, would have resulted in mandatory refusal of his application for a firearms licence under s 11(5)(b) of the Act.

21 March 2014

24. On 21 March 2014 the Applicant and another person undertook a day-long shooting expedition on a rural property in Queensland. Just before midnight Queensland Police stopped the vehicle in which the Applicant was a passenger. There were 4 deer heads in the rear of the car. There were two rifles in the car. Police located a silencer beside the passenger front door. It was found to screw on to the barrel of one of the guns. The Applicant admitted that he had been at the property since the morning and had shot the deer there.

25. The Applicant admitted that he did not have permission to be on the private property, nor permission to discharge a firearm on the property. The Applicant admitted to having the silencer fitted to one of the rifles when he shot the deer. He said he had the silencer for about two years. The silencer was seized by Police.

26. The Applicant was charged with trespass, shooting on private land without permission and possession of a silencer. The Applicant appeared before the Charters Towers Magistrates Court on 5 May 2014 when he was fined $1650 and no conviction was recorded.

27. In submissions made on his behalf following the refusal of his licence in 2018, it was contended on the Applicant’s behalf that he had been told by the local firearm store proprietor that the property on which he was charged with shooting without permission had gone into receivership, and that he could shoot there as there was no one living there. He took the opportunity to undertake deer stalking on that property. It was submitted that the Applicant now realised the error of his ways, and that regardless of the fact that a property may be uninhabited, steps still need to be taken to establish active permission, rather than an assumption that permission could not be gained.

28. In relation to the silencer the Applicant claimed in the 2018 submissions, that it was obtained through good friends in New Zealand, where these items were said to be legal. He obtained a number of these items, one which was the subject of this charge. His evidence before me was that he used this particular item in an attempt to limit the recoil from the rifle. Upon being charged, the Applicant claimed that he placed the other suppressor in his possession in a pocket behind the seat of his vehicle, with the intention, he said, of destroying it. This, however, did not occur before he was subsequently charged with the offences in September 2014.

18 September 2014

29. About 4 months after the earlier offences were dealt with, on 18 September 2014, Queensland Police executed a search warrant on the room occupied by the Applicant within a worker accommodation facility at the mine. During their search Police located a number of items: a .308 firearm, ammunition, a silencer and a quantity of stolen property belonging to the Applicant's employer.

30. As a result, the Applicant was charged with a number of offences:

1. Possession of silencer - Police also found a photograph of this silencer on the Applicant’s mobile phone dated 5 June 2014, which was barely a month after having been dealt with by the Magistrates Court.

2. Unlawful possession of Category B rifle – Police located a .308 rifle, which, he claimed, he did not own but which had been loaned to him by a friend. The Applicant told the arresting Police that he had a NSW firearms licence but that he had been residing in Queensland since about July 2011 and was the holder of a Queensland drivers licence, noting his address as Emu Park since 12 February 2012. He reportedly said he had been in contact with Queensland Weapons about getting a Queensland weapons licence and had been advised about the timeframes for getting his licence in Queensland, but that he had not complied with the timeframe. He also said he was unaware that he had 3 months to transfer his licence after becoming a permanent resident. Importantly, the room in which the firearms was located was not locked, the firearm was in an unlockable cupboard.

3. Fail to store ammunition in a secure area - Police found loose ammunition unsecured in the Applicant’s room and in his car.

4. Possession of “tainted property” - In the Applicant's room Police found a quantity of items including tools, a laser beam, light bars, paper towels, batteries with a total value of approximately $3400. All the property was in excellent condition with most still in its original packaging. The Applicant told Police he found it at the tip and believed it had been stolen from the local mine and then dumped.

1. Possess property suspected of having been used in connection with the commission of a drug offence - Police found a series of texts on the Applicant's mobile phone which related to his seeking to acquire various quantities of "weed".

2. Supplying drugs - The Applicant told Police that his partner occasionally smoked cannabis and that he would source the cannabis for her. Before me he said his partner had a bad back and took cannabis for medicinal purposes.

31. In respect of all these offences, on 1 April 2015, the Applicant was fined a total of $2000, again with no conviction recorded.

32. It was submitted in the internal review application of 2018 that, given that the Applicant was working in Queensland and living in NSW, the lines were blurred around in which State he should have held a firearms licence. The Queensland Police concluded he should be licensed in Queensland, and, although he was licensed in NSW at the time, considered that he was unlawfully in possession of a firearm in Queensland. It was submitted that it was a technical breach as he was still a valid NSW firearms licence holder.

33. In relation to the silencer, it was submitted that there was no evidence that it had been used, or was attached to any firearm, contrary to his admission in relation to the previously-located silencer. The Applicant’s position was that it had been in his possession for a number of years and he intended destroying it after the events in March 2014.

34. In relation to safe storage, the Applicant’s solicitor pointed to differences between the Queensland law and that of NSW. It remains that, in any event, the Applicant did not comply with the Queensland safe storage requirements, and pleaded guilty to that charge. In the 2018 submissions it was submitted that the firearm and ammunition were not stored as he was in ‘carriage’ situation, which is clearly not the case, as the Applicant was at the mine fulltime in his FIFO capacity. He was said to be only attending the mess hall for a short period of time, no more than 30 minutes, and given the level of security surrounding his work place environment, that the potential or real danger posed was very low. Even if I accept that the Applicant was only absent from his room for 30 minutes, the firearms and ammunition were not properly in the room in any event. I do not need to go into the detail of the Queensland legislation; suffice to say, that even on a common-sense basis, and having regard to the fact he had been a licensee in NSW for about 6 years by that time, it should have been clear to the Applicant that dangerous goods were not secured.

35. I accept that these offences occurred while the Applicant was attending his work, and therefore within an enclosed compound on a mine site, with strict security which included routine drug testing, CCTV coverage and stringent workplace rules covering safety and security.

36. It was submitted on the Applicant’s behalf that the Magistrate had considered the “objective seriousness” of the offences on each occasion in failing to record convictions and by imposing a conservative fine.

Other breaches of firearms legislation

Failure to notify of changes

37. Section 69 of the Act requires a licence holder to inform the Police of any change or particulars within 7 days of the change. Further, cl 16(2) of the Firearms Regulation 2006 (2006 Regulation), in force at the relevant time, provided required a licence holder to notify Police, within 14 days, if there was a change of address where firearms are kept.

38. On 5 February 2013 Police attended the address nominated by the Applicant as being the place of safe storage of his firearms to conduct a safe storage check, namely the Illawarra property, but there were no firearms there. The Applicant's father reportedly told Police that the Applicant had moved to Yeppoon in Queensland some 12 months earlier and had taken all his firearms with him.

39. The Fact Sheets for the Queensland offences prepared in September 2014 record that the Applicant had held a Queensland drivers licence since 3 February 2012 and that he also had an address at Emu Park (Queensland) since that time.

40. The Applicant told Police that he has been residing in Queensland since around July 2011. He also told Police that he had been in contact with Queensland Weapons licensing about getting a Queensland weapons licence and had been advised about the time frames for getting his weapons licence back across to Queensland, but that he had not complied with the timeframe.

41. The Applicant conceded that he had not contacted NSW Police about his move to Queensland. Neither did he report that he had moved his firearms there.

42. In Uzelac v Commissioner of Police, Ministry of Police [2003] NSWADT 226 Hennessey DP said that if the breaches of the Act or Regulation are trivial or excusable, as distinct from fundamental, there is less likelihood of a risk to public safety. In Bevan v Commissioner of Police [2004] NSWADT 1, the Tribunal stated at [26]:

... Parliament has given a clear indication that the Commissioner is to revoke or refuse a licence, unless the Commissioner is satisfied that the contravention was merely a technical breach, the conduct posed no risk to public safety and there was no evidence that the licence holder or applicant for a licence would in future engage in conduct that posed a risk to public safety(see s3(1)(a) of the Act). (Tribunal’s emphasis)

43. The Applicant's contravention in the present matter was not merely a “technical” breach; the Act sets out clear obligations and the Applicant has failed to comply with those obligations. I accept that his FIFO arrangements made his residency somewhat complicated, it was clear that, at least for the period he and his wife had premises at Emu Beach, he was undoubtedly a resident of Queensland. His failure to comply cannot be disregarded as an oversight, and, indeed, he told Queensland Police that he had enquired as to his obligations there, and did not comply. Similarly, he did not comply with his obligations in this State. His failure cannot be excused by his distraction of a heavy work commitments, because, on his evidence, he had long periods of downtime. Some of that time was spent in Queensland, and some in this State, but the Applicant complied with his firearms obligations in neither State. In the context of the public interest it is clear that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91 at [4], and Cook v Commissioner of Police [2003] NSWADT 30 at [34]. I consider the failure to comply with his obligations to be a serious omission in the context of considering whether he is a fit and proper person to hold a firearms licence. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. See also Todorovski v Commissioner of Police [2019] NSWCATAD 192 at [130].

Other alleged breaches of firearms legislation

44. The Respondent referred to the Applicant’s licence renewal application dated 21 October 2013 in which he indicated the Illawarra property as his address. The Respondent noted that the application included a declaration by the Applicant that all of the information in the application is true and correct in every detail and acknowledging that it is a serious offence to make a statement that is false or misleading: s 70 of the Act. I reject that contention because, accompanying the application, the Applicant attached a statement noting that he would be returning to NSW and asking that his application be placed on hold.

Other offences

45. I also observe that the Applicant had a poor driving record between 2002 and 2011, resulting at one point, in his licence being suspended. One offence related to driving while unlicensed. Limited weight is placed on these offences as, even the most recent, is over 10 years ago.

46. The Applicant had a street offence recorded in 2009. I have placed little weight on this matter as it was some time ago.

The Applicant now

47. The Applicant said, in expressing remorse for his poor judgement in 2014 and, he decided to “give back” by giving time to the younger generation through volunteering with the Sporting Shooters Association of Australia and showing them that making the wrong decisions can bring consequences that will change their life. He said he has taken them camping and has taught life-saving bush skills that he had learnt through hunting. He said he had also given time to the Conservation Hunters Association on the far South Coast to help with butchering meat to feed the homeless and economically challenged along with trapping and dispatching feral animals. I accept that he is undertaking volunteer work, utilising his hunting skills.

Referees

48. Adrian Salter wrote on 30 December 2021 that he had known the Applicant for 15 years and that over the last 3 years the Applicant had “helped” him on is cattle farm but it is unclear what role the Applicant undertook and if this involved firearms. He wrote that it was difficult for the Applicant not having a gun licence for feral animal control. Lindsay McDonald is the Applicant’s supervisor and wrote of the Applicant’s strong work ethic and that he is well-respected by his work mates. Eric Thomas, the President of the Australian Conservation Hunters Association provided a reference on 23 December 2021. He referred to the Applicant’s offences, but omitted mentioning the drug offences. He wrote in very positive terms about the assistance the Applicant has provided to him and his wife, who are both disabled. He explained the Association’s utilisation of feral deer and goat meat and that the Applicant has assisted in setting up cameras and traps and also butchering the meat which is provided to the needy. Chris Sainsbury, President SSAA, Illawarra dated 21 June 2017 referred to the Applicant attaching a silencer (“suppressor”) as “an unfortunate mistake”. He wrote to the effect that the Applicant had been deprived of his firearms licence for long enough. He wrote of the Applicant volunteering for the Association.

49. All of the referees, unsurprisingly, wrote positively of the Applicant. As to the weight to be given to the references though, not all referees made it clear that they were aware of the Applicant’s offences. Concerningly, Mr Thomas, who clearly holds the Applicant in high regard, while listing all the Applicant’s Queensland offences, omitted the drug offences. Mr Sainsbury referred only to the silencer offence. Further, Mr Sainsbury did not record that the Applicant had been apprehended twice with a silencer. I consider limited weight can be attached to those references because it is unclear whether the referees were aware of the totality of the Applicant’s offences and whether, despite those offences, they still believe the person to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].

Report of Michael Kruger-Davis, psychologist

50. Mr Kruger-Davisis not the Applicant’s treating psychologist; he was engaged by the Applicant, on the recommendation of the Applicant’s solicitor, to provide a report. Mr Kruger-Davis wrote in his report of 19 June 2018 that he had formed his view in relation to the Applicant after having had two telephone conversations with him, examining the refusal letter dated 14 March 2018 and Chris Sainsbury’s character reference dated 21 June 2017 (see comments above in relation to Mr Sainsbury’s reference).

51. Little weight can be attached to Mr Kruger-Davis’ report because so many of his conclusions rely on the Applicant’s self-report. For example:

1. In relation to the drugs charges he concluded that both of these matters relate to a text message that was on the Applicant’s phone. He said the text message was sent by the Applicant’s partner to a third party. Consistent with the Applicant’s evidence before me, which I accept, he observed, that because of the Applicant’s position as a miner, he has to undergo regular drug testing and has never failed a drug test because “he does not do drugs.”

2. Mr Kruger-Davis referred to a street offence in 2009, which involved the Applicant urinating in public. The Applicant told him, as he said in his evidence before me, that the offence occurred was at 10.30pm on a public holiday, in the dark, adjacent to a paddock while he walking home. At the time he was with others who all fled. He was issued with the infringement.

3. In the original decision there had been a reference to the Applicant’s driver’s licence being suspended for 6 months in 2017. The Applicant told Mr Kruger-Davis that this was a fine for not voting and the State Debt Recovery Office had his licence cancelled for failing to pay the fine. When the Applicant contacted the Office, he said, the fine was waived and his licence was reinstated. Mr Kruger-Davis made no mention of the Applicant’s licence suspension in 2002.

4. Mr Kruger-Davis referred to the Applicant’s multiple traffic infringements, the majority of which occurred between 2002 and 2008 when the Applicant was aged 17 to 23. He sought to excuse the Applicant’s conduct by referring to “a substantial body of psychological evidence” to the effect that young males have a poorly developed prefrontal cortex area of the brain and therefore lack the executive function skills such as planning, inhibition, weighing up consequences, regulating their behaviour and meta-cognition (thinking about their thinking). It is unclear if this applied to the Applicant at all.

5. In relation to the charges heard on 5 May 2014 the Applicant told Mr Kruger-Davis that he and a companion asked the local gun shop owner for the contacts for property owners who may allow them to hunt deer. They were told about a property that was in vacant possession and he said they could hunt there as no one lived there. There was no mention by Mr Kruger-Davis that the Applicant made no enquiries about seeking permission and merely relied on the information he had been given. He wrote they were “approached” by the Police who were patrolling for stock theft. In relation to the silencer fitted to the Applicant’s rifle Mr Kruger-Davis said that the Applicant used it not for silencing the firearm but for reducing the recoil of heavy ballistic loads used for hunting deer. Again, this can only have been the Applicant’s self-report. Indeed, that was what the Applicant told me in his evidence.

6. In relation to the firearm charges heard on 1 April 2015, the Applicant told Mr Kruger-Davis that Police had found a rifle recoil suppressor, that is, a silencer, in the seat pocket of his vehicle. The Applicant told Mr Kruger-Davis he had forgotten it was there and that it did not fit any of the firearms he was using. Mr Kruger-Davis concluded that the Magistrate was satisfied that the Applicant was not using the suppressor for any illegal purposes. There is, however no evidence to that effect, and presumably Mr Kruger-Davis was relying entirely on the Applicant’s self-report. In relation to the charge of not securing ammunition Mr Kruger-Davis observed that the Magistrate did not enter a conviction because the ammunition would have been locked away when all the other equipment from the hunting trip were secured. Again, there is no evidence to that effect, and it is most likely to again be entirely the Applicant’s self-report.

52. Mr Kruger-Davis said the Magistrate accepted that the Applicant was “transparent and sincere in his approach to the police and the court”. Again, this can only have been the Applicant’s self-report. Mr Kruger-Davis reported that the Applicant has expressed deep regret and remorse over his past behaviour. He was said to now lead a settled life with his wife raising their two children. He has a responsible job and undergoes regular drug testing as part of his employment. The Applicant was said to understand the implications of choosing to behave in an immoral or illegal way. Mr Kruger-Davis considered that the Applicant had impressed the SSAA branch president, Mr Sainsbury who was prepared to write an “unreserved character reference”. As I have observed, Mr Sainsbury did not refer to any offence other than one occasion of having a “suppressor”. Mr Kruger-Davis also did not refer to the drug offences, nor the charges in relation to the stolen goods.

53. Mr Kruger-Davis conceded that it is impossible to know how anyone will behave in the future, but referred to the Applicant’s remorse and regret over his actions when he was “younger”. I observe though that the Applicant was aged about 29 when the offences occurred; I do not think they can be characterised as youthful indiscretions.

54. He considered the Applicant now has the capacity to weigh up the consequences of his actions so that he is likely to make future decisions that will maintain public safety. Mr Kruger-Davis referred to the Applicant’s “compliant behaviour when approached by the Police” but I observe that the Applicant, as is his right, had declined to be formally interviewed by Police in September 2014.

55. Mr Kruger-Davis referred to the Applicant’s “open and transparent dealings with the courts”. He said that this indicates an attitude that respects the law and the legal system and also a substantial respect for upholding public safety. This conclusion does not follow from the Applicant’s transgressions, and presumably relates to the Applicant’s guilty pleas, once his illegal conduct had been detected.

56. For the reasons discussed above, I have attached little weight to the report of Mr Kruger-Davis.

Conclusion as to fit and proper person

57. The Applicant has a history of a variety of offences, on two recorded occasions: multiple firearms offences, drug offences and a stealing offence. Any one of those offences, had a conviction been recorded, would have resulted in mandatory refusal of his application for a firearms licence under s 11(5)(b) of the Act. The firearms legislation clearly regards offences of the kind committed by the Applicant to be sufficiently serious that, on conviction, a person is not eligible for a firearms licence for 10 years.

58. In Edlington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 58, Dinnen SM at [42] rejected a submission that where no conviction is recorded “this is an indication of the court’s view on the seriousness of the offending”. The Senior Member considered that penalty considerations in criminal proceedings involve more than just the objective seriousnessof the offences. I agree with the Senior Member’s assessment of the sentencing process.

59. Although having pleaded guilty to the charges, the Applicant in his evidence, and in the account provided to Mr Kruger-Davis, attempted, it seemed to me, to distance himself from the wrongdoing. In relation to the silencer, he said it was for recoil minimisation. He may have utilised it for that purpose, but it remains, that a silencer is classified as a prohibited weapon under the Weapons Prohibition Act 1998 (NSW). If he had had it for a couple of years as he claimed, then he certainly had it while resident in this State. There was no explanation for the second silencer. The Applicant may have been confused as to where he should have been licensed, but, having sought out the Queensland requirements, he did nothing to comply. In addition, it is clear he transported his firearms from this State to Queensland. This cavalier approach to licensing requirements and, importantly to firearms safety issues, is a serious flaw in the Applicant’s approach to his obligations as a firearms licensee. Further, despite his professed remorse over his conduct in 2014, he still seeks to minimise that conduct.

60. While the Applicant’s driving offences are now sometime ago, they are indicative of a casual approach to another licensing regime. The Applicant’s driving record is of less significance but does demonstrate a continuing disregard for safety laws.

57. In Ainscough v Commissioner of Police [2021] NSWCATAD 106 Professor Walker SM said recently, at [55] – [56]

55 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].

56 In the context of firearms licensing, the tribunal is required to form a positive state of satisfaction that an 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”: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63, [45].

62. For the reasons discussed above, I am not satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

Public interest

63. The Respondent also contended that it is not in “the public interest” for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that “the public interest” is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act’s objects and underlying principles as set out in s 3 of the Act. The Tribunal’s decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence.

64. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when, nonetheless, it can be in the public interest for an applicant to hold such a licence. In this case, the genuine reason the Applicant gave in his application for seeking a firearms licence was recreational hunting/vermin control. I accept that the Applicant has previously engaged in recreational hunting/vermin control, but that he did so as a hobby, and it is unrelated to any rural property needs, cf McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98. The Applicant’s evidence and that of Messrs Sainsbury and Thomas was of his activities on the periphery of the firearms community now that he does not have a licence. No doubt his role could be enhanced if he had a licence.

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

66. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

67. The Applicant seeks a firearms licence because he enjoys the bush. Private interests however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

68. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. The available evidence, in particular the Applicant’s cavalier attitude to property laws, and more particularly, gun laws and drug laws, in my view, establishes a real and appreciable risk to public safety: see Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].

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

Conclusion

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

DECISION

71. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 July 2022