Head v Commissioner of Police

[2024] NSWCATAD 81

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Head v Commissioner of Police [2024] NSWCATAD 81

Hearing dates:

3 August 2023

Date of orders:

26 March 2024

Decision date:

26 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

The decision of the Commissioner of Police to refuse Mr Head a Category AB firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – Application for a Category AB firearms licence – alleged violent behaviour - alleged provision of false and misleading information in licence application – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Leatham v Commissioner of Police [2021] NSWCATAD 121

McDonald v Guardianship and Administration Board [1993] 1 VR 521

Sawires v Commissioner of Police [2010] NSWADT 4

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Trent Head (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self-Represented
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00277292

Publication restriction:

(1) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material and Confidential Submissions or matters contained in the Confidential Material or Confidential Submissions is prohibited.
(2) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material or Confidential Submissions or matters contained in the Confidential Material of Confidential Submissions is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal.
(3) Pursuant to sections 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication or reporting of the Confidential Hearing, including any evidence given in the Confidential Hearing, is prohibited.
(4) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. Mr Head applied for a Category AB firearms licence, but the Commissioner of Police refused the application because the Commissioner considered that the issue of the licence would be contrary to the public interest.

2. This case is about whether or not the decision to refuse Mr Head the licence is the correct and preferable decision.

Background

3. Mr Head lodged an application for a Category AB firearms licence on 14 August 2021.

The original decision

4. On 23 September 2021 the Commissioner of Police (‘Commissioner’) refused the application. In a letter of the same date the delegate of the Commissioner outlined the following allegations in respect of Mr Head:

• On 15 June 2006 Mr Head is alleged to have touched the buttocks of a woman in a licenced premise and then smashed a glass and “held the glass up towards [the woman’s] neck area”. As a result of this incident the then Administrative Decisions Tribunal cancelled Mr Head’s security licence on 18 October 2008.

• On 18 January 2008 Mr Head approached Police at a licenced premise and told them “how much [he] hated Aboriginal people and Police” and that he would “bash numerous Police and it would require twenty Police to take [him]”.

• On 7 February 2021 Police attended a licenced premise due to Mr Head’s intoxication and refusal to leave. He was “extremely aggressive and un-coordinated”. He became aggressive towards Ambulance officers who attended to stiches in his forearm.

5. The Commissioner’s delegate identified concerns about Mr Head’s character and decided that it would not be in the public interest for the licence to be issued to Mr Head.

The internal review

6. Mr Head exercised his right to seek an internal review of the decision to refuse the licence. On 18 August 2022 the reviewer affirmed the decision to refuse Mr Head’s application for a Category AB firearms licence. The Senior Adjudicator made this decision taking into account any criminal charges, apprehended violence orders and incidents in which Mr Head had interacted with Police and Ambulance officers and members of the public. The Senior Adjudicator acknowledged that Mr Head had not been the subject of any criminal charges since 2006 but concluded that Mr Head has a “propensity toward threatening and aggressive behaviour” and that Mr Head had a history of “hostilities toward police”.

7. The Senior Adjudicator considered that Mr Head provided false and misleading information on his application for a firearms licence lodged on 14 August 2021 and identified the following in the application:

• That Mr Head stated he had not previously held a NSW firearms licence

• That Mr Head stated he did not have a current NSW driver licence

• That Mr Head stated he had not ever had a firearms licence revoked in NSW or elsewhere

8. The Senior Adjudicator concluded that it would not be in the public interest for Mr Head to be issued with a firearms licence.

The administrative review including interlocutory orders made

9. Mr Head lodged an application for administrative review with the Tribunal Registry on 15 September 2022.

10. On 7 December 2022 the Tribunal made an order under section 59 of the Administrative Decisions Review Act 1997 that the Commissioner was not required to lodge copies of certain Confidential Material with the Tribunal as part of the section 58 documents. The Tribunal also made orders that:

1. Prohibited the publication of the Confidential Material and Confidential Submissions or matters contained in the Confidential Material and Confidential Submissions (under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013).

2. Restricted disclosure of the Confidential Material and Confidential Submissions or matters contained in the Confidential Material and Confidential Submissions to the respondent, the respondent’s legal representatives and the Tribunal (under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013).

3. Prohibited the publication or reporting of the hearing of the application, including any evidence given in the s 59 hearing (under section 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013)

11. The practical effect of these orders is that only the Respondent, the respondent’s legal representatives and the Tribunal have access to the Confidential Material and Confidential Submissions.

12. The hearing of the application for review took place on 3 August 2023 after the Tribunal granted adjournments on 21 March 2023 and 18 May 2023.

13. I conducted part of the hearing on 3 August 2023 as a hearing in private under section 49(2) of the Civil and Administrative Tribunal Act 2013. This is further discussed under the subheading ‘Confidential hearing’ below.

Relevant legislation

14. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW.

15. The underlying principles set out in section 3(1) the Firearms Act 1996 include:

…(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,…

16. The objects of the Firearms Act 1996 in section 3(2) include

…(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 supply of firearms,

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

17. A licence must not be issued unless 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”: section 11(3)(a) of the Firearms Act 1996.

18. A licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is “a risk to public safety” and issuing a firearms license would be “contrary to the public interest”: section 11(5A) of the Firearms Act 1996.

19. The Commissioner may refuse to issue a licence if the Commissioner considers that to do so would be “contrary to the public interest”: section 11(7) of the Firearms Act 1996.

20. Section 70 of the Firearms Act 1996 makes it an offence a person to make a statement or provide information in an application under the Firearms Act 1996 that the person knows to be false and misleading in a material particular.

Administrative review jurisdiction

21. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms license is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

22. When determining an application for an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

23. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

24. The Tribunal is to approach the issue of whether the firearms licence should be granted to Mr Head afresh, without any presumption as to the correctness of the decision under review: for example, see McDonald v Guardianship and Administration Board [1993] 1 VR 521 at [530].

The hearing

Criminal history

25. Mr Head’s criminal history comprises of the following charges arising from an incident on 2 April 2006. These charges were the subject of an appeal to the District Court:

• Assault with act of indecency and resist officer in execution of duty. Mr Head was convicted of these offences in the Local Court and the convictions were quashed by the District Court on appeal.

• Common assault. Mr Head was convicted of this offence in the Local Court and given a $500 fine. The conviction was confirmed by the District Court on appeal.

Traffic history

26. Mr Head had traffic infringements from 2001 including:

• 2002 Drive with middle range prescribed concentration of alcohol: $400 fine and disqualification for 9 months

• 2004 Drive with low range prescribed concentration of alcohol: $750 fine and one year disqualification (reduced to 6 months disqualification on appeal)

• 2021 Negligent driving (no death or grievous bodily harm): convicted and fined $100

27. Other traffic infringements over that period include:

• Not wear seat belt

• Exceed speed limit by not more than 10 km/h – four infringements

• Exceed speed limit by not more than 15 km/h – two infringements

• Unlicensed driver

• Disobey traffic lights

• Drive unregistered heavy vehicle

• Drive across dividing lines to perform a U-turn

Respondent documents and Mr Head’s evidence

Genuine reason

28. Mr Head identified being a member of a target shooting club as the basis for his genuine reason for requiring a firearms licence in his application for a Category AB firearms licence, lodged on 14 August 2021.

29. Mr Head told the Tribunal that he wanted to go recreational shooting with some firearms that were family heirlooms. He said his cousins’ own properties and he intended to shoot on those properties. He agreed he had not provided any letter to the Firearms Registry or the Tribunal which gave him permission to shoot on rural property. Mr Head accepted that on his 14 August 2021 firearms licence application form he had only put the genuine reason of target shooting and had not identified recreational hunting as a genuine reason.

30. Mr Head explained that his membership of the Sporting Shooters’ Association of Australia Inc. (SSAA) had lapsed in August 2022 because his wife pays all the bills, and he is “not good with mail”.

31. Mr Head later said that he had two addresses, and his mail did not all come to the one address. He said that the mail was unreliable and that multiple people collect mail from that address.

32. Mr Head filed evidence in this proceeding which showed that as at March 2023 he was a member of the Sporting
    Shooters’ Association of Australia (SSAA) and registered for target shooting and hunting activities.

Traffic record

33. Mr Head accepted the drink driving offences mentioned above and described those offences as a “mistake” and “poor judgement”.

34. Mr Head said he “did a silly thing” in 2002 and regretted his decision to drive with a mid-range prescribed concentration of alcohol. He admitted to running from Police and stated that he was 21 years of age and “immature”.

35. Ms Chenhall, for the Commissioner, asked Mr Head about the 2004 low range prescribed concentration of alcohol offence. Mr Head offered that he was just over the limit (he tested 0.065). He explained that there were two traffic lights that were difficult to judge as they were close together and the one ahead was green. He said he had consumed “a few beers”. He admitted he made a mistake and takes full responsibility. He said he has not driven a motor vehicle when he had been drinking since then.

36. The NSW Police Force Computerised Operational Policing System (COPS) entry about the 2004 driving incident state that police were waiting in a vehicle at the intersection and they saw a pedestrian hesitate as they were about to cross at the intersection and Mr Head’s car then skidded into the intersection when faced with a red traffic light.

37. Mr Head referred to the 2021 car accident on the M4 motorway which led to his conviction for negligent driving. He denied what the Respondent put in written submissions, that is that it was “a major crash”. He said there was no damage to his car and minimal damage to the other car. He agreed that he had not paid attention to a level where he was able to stop before hitting the vehicle in front.

38. Mr Head relied on the transcript from the Local Court. The magistrate hearing the traffic matter referred to another car that was attempting to change into Mr Head’s lane and that this vehicle distracted Mr Head and when he encountered a stationary vehicle he applied the brakes but did not stop in time to avoid collision. The magistrate stated that “it is not a serious offence” and “a relatively minor collision”. The magistrate found the offence proved on the basis that Mr Head was distracted and when he turned his attention back to the roadway it was too late to break to avoid collision. In sentencing Mr Head, the magistrate found the offence to be “towards the lower end of the scale” and he was convicted and fined $100.

Other interactions with Police

4 May 2002 incident at hotel

39. The COPS records an incident involving Mr Head on 4 May 2002 where he is said to have argued with a man at a hotel. The man is said to have “grabbed” Mr Head’s girlfriend several times earlier that night. The two are recorded as having pushed and shoved each other and when a friend of the man sought to intervene, Mr Head is alleged to have punched the friend on the left side of his mouth and he was knocked unconscious. The friend of the man is described to have sustained minor lacerations, swelling and bruising to the left side of his mouth and he had a tooth knocked loose.

40. Mr Head told the Tribunal that the man had grabbed his girlfriend between the legs. He said he fought back and defended himself and no charges were laid against him.

18 October 2005 revocation of Category H firearms licence (security guard)

41. Mr Head was issued with a Category H firearms (security guard) licence in November 2000. He agreed that he had never carried a firearm, stating this was due to the cost of insurance. He cited this as the reason that he did not renew the firearms licence. He said he returned the licence to Police in 2005.

42. Records provided by the Respondent show that the Category H firearms (security guard) licence was revoked in October 2005. Mr Head denied receiving the revocation notice, dated 18 October 2005, and stated he had moved from the address that the letter was sent to and he was overseas at the time.

43. Ms Chenhall asked Mr Head why had attended the police station on 7 November 2005 to hand in his licence. Mr Head said he had been meeting with Police in the lead up to New Year’s Eve to discuss how to control a major venue on New Year’s Eve.

Allegations made by ex-partner on 1 November 2005

44. Mr Head was referred to the COPS record which states that Mr Head’s ex-partner contacted Police on 1 November 2005 in order to seek an Apprehended Violence Order. She alleged that from September 2004 Mr Head would physically abuse her after consuming alcohol, including by slapping her and holding her down. She told Police that on 22 October 2005, while she and Mr Head were on a holiday overseas, she hit Mr Head during an argument. She alleged that Mr Head later pinned her down on their bed and took her arms and forced her to strike herself in the head several times. She alleged he threw her into a wall and pushed her into a wall and began choking her. When a friend of Mr Head intervened in the altercation, Mr Head is alleged to have struck him. When retrieving his possessions from his ex-partner’s secure garage sometime later, Mr Head is alleged to have said to his ex-partner “Just you remember, I know where you live.”

45. Police investigated the report and interviewed Mr Head. Due to conflicting accounts Police decided not to proceed to obtain an Apprehended Violence Order.

46. In response to these allegations, Mr Head told the Tribunal “I have never hit a woman”. He denied he had pinned his ex-partner down and forced her to hit herself. He said she assaulted him and that started the fight. He said they had broken up and he suggested that his ex-partner might have made the complaint to Police out of revenge.

2 April 2006 incident at hotel

47. Mr Head is recorded in COPS records to have attended a hotel on the evening of 2 April 2006. He is alleged to have grabbed and squeezed the left breast of a woman he was walking past. When confronted by the woman, Mr Head is alleged to have said was trying to grab the woman’s cigarette and that she had burnt him with it. The victim countered by saying that Mr Head has passed her on the other side to the hand she held the cigarette in. Mr Head is alleged to have spat at the woman and the spit is alleged to have landed on her forehead. The woman is said to have grabbed Mr Head by the wrist and another man freed her grip on Mr Head.

48. Both the woman and her companion were off-duty female police officers. The companion grabbed the collar of Mr Head’s T-shirt and told him he was under arrest. Mr Head is alleged to have have said “Fuck off slut” and run down the hotel front steps. After the companion again grabbed Mr Head by his T-shirt and told Mr Head he was under arrest, Mr Head is alleged to have “manoevered” out of his T-shirt and ran down the street. He is said to have then reappeared and argued again with the two off-duty officers and suggested that he had been burnt by the woman’s cigarette. Mr Head is alleged to have said: “Fuck you, you pigs. You’re nothing but a fat pig slut.”

49. Mr Head responded to these allegations by saying that they were “fabricated” and a “stich-up”. He said that on appeal, the assault with act of indecency and the resist arrest convictions were quashed. He said the assault charge was upheld because he had entered a plea of guilty.

47. Mr Head gave his version of what occurred at the hotel. He said that the two females knew who he was and burnt him on the wrist with a cigarette. He denied grabbing one of the females on the breast. He said that the police officers did not show their police badge. He said that he had worked in nightclubs and pubs for many years in close proximity to females with no incident.

15 June 2006 incident at nightclub

51. According to COPS records, Police attended a nightclub and viewed CCTV footage of the nightclub from 15 June 2006. Police allege the following could be seen on the CCTV footage. Mr Head could be seen touching a female patron on the buttocks and she moved away. Mr Head then took a glass from the other side of the bar, smashed it and held the glass up towards the woman’s neck. A security guard appeared and Mr Head was then removed from the bar.

52. Police were not able to determine the identity of the woman and she did not make a report to Police.

53. Mr Head’s response to this account was that he was present at the nightclub but he did not get a glass nor engage in the conduct as alleged.

Final AVO granted 5 July 2006 following an incident on 20 February 2006

54. Mr Head and his ex-partner resumed their relationship some time after returning from the overseas trip. After she ended the relationship Mr Head is alleged to have arrived at her home with other males, demanding the return of his keycard and that he verbally abused her and uttered the words “I’ll break the sluts [sic] legs”. He is also alleged to have sent an intimate video of her and himself to another person. Mr Head is also alleged to have grabbed his ex-girlfiend’s arm the following night and pulled her off the dance floor and to have orchestrated her removal by security from a nightclub. Police allege Mr Head’s ex-girlfriend felt harassed and intimidated by frequent calls and texts from Mr Head.

55. An interim apprehended violence order was issued on 20 February 2006 and served on Mr Head the next day. Police described Mr Head as “argumentative” at the time of service. Police allege that Mr Head told them that he intended selling copies of the intimate video he was distributing by text message.

56. A final AVO was issued on 5 July 2006. Mr Head referred to an apprehended violence order in his evidence, stating that he consented to one order in court, without admissions, but he was not sure if it was this apprehended violence order.

57. When asked about this alleged conduct, Mr Head said that he couldn’t recall if he had been texting his ex-partner. He said he did not think what the Police alleged was an accurate report. He denied going to his ex-partner’s house with other males and stated he would never have said “I’ll break the slut’s legs”.

58. In response to the suggestion he was argumentative with Police when served with the interim order, Mr Head explained he was embarrassed as Police had served him at his workplace.

59. Mr Head denied he had distributed the intimate video to another person by text. He said he may have been “a bit short” with Police.

18 and 19 January 2008 interaction with Police

60. Police COPS records show that on 18 January 2008 Police conducted a licensed premises inspection at a hotel. Police alleged that Mr Head approached them and told them “how much he hated aboriginal persons and police”. Police alleged that Mr Head stated he will “bash numerous police and it will require 20 police to take him”.

61. Mr Head told the Tribunal that this was “made up” and a lie. He strongly denied making such comments.

62. Police state in COPS records that there was an incident on 19 January 2008 where Police arrested another man at a hotel for drug possession. Police became suspicious of Mr Head because he is alleged to have touched the other man and “their hands were seen near each other” prior to the man being searched by Police. Mr Head was then searched by Police but nothing was found. Police allege that Mr Head as “extremely hostile and argumentative” during the incident and allege that Mr Head threatened to make false reports about Police. Police also allege that Mr Head approached Police and stated that he had “beatup [sic] lots of off duty police and that was why he lost his security licence”. Mr Head denied making any such comment to Police.

63. Mr Head told the Tribunal that the allegation in the COPS account that he had been seen by Police recently and believed to be affected by drugs was a “blatant lie”. He said that Police had targeted him as he had questioned the appropriateness of the use of force by Police against an Aboriginal young person.

22 June 2008 alleged comment at rugby league presentation

64. Police allege that on 22 June 2008 Mr Head was leaving a rugby league presentation and made the following comment to a former female police officer: “I hate all coppers ya all cunts, especially all women”.

65. At hearing, Mr Head said that this allegation was based on hearsay and otherwise denied it.

30 October 2008 report by sister’s fiancée

66. Police COPS records allege that on 30 October 2008 Mr Head sent his sister’s ex-fiancée (‘fiancée’) text messages which stated: “You are a pathetic shit. You face book [sic] not only proves what a hypocritical liar you are, but a delusional.” Police alleged that Mr Head admitted to sending the text messages.

67. Mr Head told the Tribunal that the fiancée was “a pest”. He denied sending such a message and said there was no evidence the message came from his phone.

30 May 2009 move on direction

68. Police COPS records show that on 30 May 2009 Police attended an alleged “small brawl” between three men, including Mr Head. Police state that one of the men had a “small amount of blood to the face” and that the men were affected by alcohol. Police state that none of the men wished to report the incident to Police. According to Police, the men were then directed to move on.

69. Mr Head responded to this COPS entry and explained that because he had worked in security he had made hundreds of enemies. He denied being involved and said that it was one of the men who “tried to attack [him]” and his “mate” had a physical altercation with this man.

20 July 2009 incident in McDonald’s

70. Police COPS records state that on 20 July 2009 Police were called to a McDonald’s in response to Mr Head being “intoxicated and behaving inappropriately”. Police allege that Mr Head stood on the counter and jumped up and down, accused the staff of being racist and attempted to drink the water out of the cleaner’s water bucket. Police directed Mr Head to leave the McDonald’s.

71. Mr Head admitted to the Tribunal that he “acted like a juvenile” and a “bit of a clown”. He said he would not have behaved in such a manner if he was not “so drunk”.

7 February 2010 incident at Leagues Club

72. Police COPS records allege that Mr Head entered the Leagues Club and was informed he was too intoxicated to remain. Police allege that Mr Head then fell over. Police described Mr Head as “extremely aggressive and un-coordinated” and that after an ambulance arrived because of possible injury to his arm with stiches in it. Mr Head became “aggressive” towards ambulance officers after being asked basic medical questions.

73. Mr Head alleged to Police, and also stated to the Tribunal, that he was pushed over by a security guard. He said that if he had done anything wrong Police would have fined him or taken some other action against him.

Alleged false and misleading information on 2021 application

74. Ms Chenhall put to Mr Head that he had provided false information on the 14 August 2021 firearms licence application form by answering “no” to the following:

• Whether he had previously held a NSW firearms licence under the current Firearms Act 1996

• Whether he had a current NSW Driver’s Licence

• Whether he ever had a firearms licence or permit suspended or revoked

75. Mr Head agreed that by answering “no” to these questions, his answers were false. He added: “as far as [he] was aware at the time” he believed the answers to be correct. Ms Chenhall pressed further, suggesting to Mr Head that if he answered “yes” to the last question it would raise a red flag with the Firearms Registry.

76. Mr Head responded and said that these errors were genuine mistakes and denied knowingly providing false information on the form. He described the mistakes as “human error” and said he thought a person needed a university degree to complete these types of online forms.

77. Ms Chenhall took Mr Head to another form a ‘Declaration – Person shooting on an Approved Range or undertaking a Firearms Safety Training Course’ form completed by Mr Head on 13 August 2021. Again, Mr Head ticked “no” to a question about whether he ever had a firearms licence or permit suspended or revoked.

78. Ms Chenhall put to Mr Head that he knew if he ticked “yes” to this question it would have impeded his ability to participate in firearms activities. Mr Head said that at that time he did not know that his Category H licence had been revoked. He said that he had believed that he handed it in as it had expired.

79. As referred to above, under the heading ‘18 October 2005 revocation of Category H firearms licence (security guard)’ Mr Head was issued with a Category H firearms (security guard) licence in November 2000, which was revoked in October 2005. Mr Head denied receiving the revocation notice, dated 18 October 2005 (refer to above). When asked by Ms Chenhall about why he attended the police station and handed in his licence, Mr Head’s evidence was that he was there for a meeting about arrangements for the control of a major venue New Year’s Eve.

Alleged targeting by Police

80. Mr Head argued that Police had targeted him and pointed to the fact that the licencing sergeant was aware of the complaints made by his ex-partner. Mr Head had also made a complaint to the licensing sergeant about the conduct of police.

81. Ms Chenhall put to Mr Head that it was not only Police from one particular area, but from a number of Area Commands or locations that had taken action against him.

Character references provided by Mr Head

82. Mr Head relied on a series of character references from friends, people from boxing or involved in the youth martial arts program Mr Head runs. He also provided a reference from his current partner. The references refer to Mr Head’s community work helping at-risk youth and also his proficiency at work and in conducting activities such as abseiling. Those that know Mr Head attest no having no concerns about him obtaining a firearms licence. However, there is only one reference in these references to Mr Head’s criminal history: one referee refers to “old police reports” being used against him.

Submissions made by the parties in the open session

83. Mr Head argued that he was an honest and hardworking man with a wife and family. He said he had not been the subject of criminal charges or fines since 2006. He challenged some of the written accounts of Police and disputed many of the allegations made about him. He argued that Police had suggested nothing adverse about him since 2011, except for his involvement in the 2021 car accident. Mr Head said that he had worked with Police to run a program for mentoring kids. He said that he helps people and people respect him. He denied being anti-police and said he co-operates with Police. He stated that not all Police are ethical or behave the way they should. He described that allegations made about his conduct as exaggerated, old and cannot be relied upon.

84. Ms Chenhall submitted that Mr Head had a “lengthy history” of involvement with Police and the mere passage of time since the alleged conduct is not enough to demonstrate that Mr Head is now a fit and proper person to be issued with a firearms licence. She suggested that if the Tribunal was to accept Mr Head’s assertion that he had been targeted by Police, the Tribunal would have to accept that Wollongong, Dubbo and city police had all targeted Mr Head. Ms Chenhall described this notion as “simply farcical” and submitted that it could not be accepted. She submitted that Mr Head’s conduct would be of “immense concern” to the Tribunal and that Mr Head had sought to excuse or explain Police involvement with him over the years. She submitted that Mr Head had an immense dislike for Police and that he had threatened Police and assaulted an off-duty police officer. She submitted that the Tribunal should be gravely concerned that Mr Head would not comply with Police in their capacity in implementing firearms laws, such as the carrying out of safe storage inspections.

85. Ms Chenhall submitted that the Tribunal could find that Mr Head provided misleading and incorrect information on the 14 August 2021 firearms licence application form. She suggested that he did so in order to prevent further scrutiny, including by indicating he did not have a current driver’s licence.

86. Ms Chenhall submitted that Mr Head did not have a genuine reason for the possession and use of firearms for the purpose of target shooting. She submitted that the reason Mr Head wanted a firearms licence was to possess other firearms. She suggested that Mr Head made up his evidence about being unaware his earlier firearms licence had been revoked. She suggested that Mr Head was not a truthful witness and that the police records speak for themselves.

87. Ms Chenhall argued that the Tribunal should place little to no weight on the character references as there was nothing to indicate that the referees had been provided with the detail of Mr Head’s alleged conduct or criminal charges.

Confidential hearing

88. The Commissioner lodged various material on 22 November 2022, which is referred to as the Confidential Material and Confidential Submissions in the orders made by the Tribunal on 7 December 2022. The Tribunal made a series of interlocutory orders on that date about the Confidential Material and Confidential Submissions which I outlined under the heading ‘Background’ at paragraph [14].

89. I conducted part of the hearing on 3 August 2023 as a hearing in private (the “Confidential Hearing”) under section 49(2) of the Civil and Administrative Tribunal Act 2013 in order to deal with the Confidential Material and Confidential Submissions. This part of the hearing was conducted in the absence of Mr Head and the public.

90. Given the orders made about restricted disclosure and non-publication of the Confidential Material and Confidential Submissions I was satisfied that it was desirable to conduct part of the hearing in private given the confidential nature of the evidence.

91. The purpose of the Confidential Hearing was to hear the Commissioner’s legal representative on the nature of the Confidential Material and its relevance and probative value to the issues before the Tribunal.

92. [NOT FOR PUBLICATION]

93. [NOT FOR PUBLICATION]

94. [NOT FOR PUBLICATION]

Consideration

Findings of fact and application of the law

95. I make the following factual findings.

96. Mr Head has been involved in violence in the past. Some of his actions have given rise to criminal charges and some have not.

97. I found Mr Head’s evidence about these incidents to be self-serving. He was not able to adequately address the police evidence put to him and I found his evidence to lack credibility.

98. I also found Mr Head’s evidence that he did not know his membership of the Sporting Shooters’ Association of Australia Inc. (SSAA) had lapsed in August 2022 unconvincing as well as his evidence that he was not aware that his Category H (security guard) licence had been revoked in October 2005.

99. I am satisfied on the balance of probabilities that the following incidents occurred:

• Mr Head was involved in a physical fight with another man at a hotel on 4 May 2002

• Mr Head physically assaulted his then partner and a friend on 22 October 2005 and on 20 February 2006 he threatened to harm her and sent an intimate video of herself and Mr Head to another person.

• Mr Head assaulted an off-duty female police officer on 2 April 2006.

• Mr Head touched a female patron in a nightclub on the buttocks and smashed a glass and held it up towards the woman’s neck on 15 June 2006.

• Mr Head was involved in a physical fight with two other men on 30 May 2009.

100. I am also satisfied on the evidence before me that Mr Head has an antagonistic relationship with Police. I make this finding because of the number of comments that he is said to have made to Police and the difficulties Police have documented in dealing with Mr Head.

101. The Commissioner placed some emphasis on the 2021 car accident. However, I accept this accident was due to Mr Head being distracted on the road. I do not include this accident in my assessment of Mr Head’s risk to public safety if he were to be issued with a firearms licence or his disregard for the law. Mr Head has a lengthy traffic history but I note the drink driving offences are approximately 20 years old.

102. I do not consider that the character references provided by Mr Head provide much to assure the Tribunal about any risk, as they do not refer to or address Mr Head’s criminal history and the allegations made about his past conduct. I therefore accord them limited weight: refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53].

103. I am satisfied that Mr Head provided false and misleading information on the 14 August 2021 firearms licence application form. I do not accept Mr Head’s evidence that he believed at the time that his answers were correct. Neither do I not accept his evidence that the incorrect answers were genuine mistakes. I place significant weight on this, as it was recent and it is evidence that Mr Head was not honest and forthcoming with the Firearms Registry. The operation of the statutory scheme is dependent on applicant’s providing true and correct information: Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18].

Conclusions about the confidential documents and confidential hearing

104. [NOT FOR PUBLICATION]

105. [NOT FOR PUBLICATION]

106. [NOT FOR PUBLICATION]

107. I am satisfied that it would not be in the public interest for Mr Head to be granted a firearms licence. One reason for my decision is the violent behaviour of Mr Head in the past and a lack of evidence that Mr Head has addressed this behaviour. I am also concerned by the fact that Mr Head gave incorrect information on his firearms application form and failed to provide information to the Firearms Registry that might lead to a refusal of his application. In addition to this are the matters I have discussed under ‘Conclusions about the confidential documents and confidential hearing’. All of these matters have led me to the decision affirm the decision under review.

OrDERS

108. The decision of the Commissioner of Police to refuse Mr Head a Category AB firearms licence 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

Amendments

26 March 2024 - Removed the duplication of "I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal".

Decision last updated: 26 March 2024