Hegedues v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 265

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hegedues v Commissioner of Police, NSW Police Force [2024] NSWCATAD 265

Hearing dates:

12 - 13 August 2024

Date of orders:

04 September 2024

Decision date:

04 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review - firearms licence - public interest – licence previously revoked – fit and proper – potential for relapse

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

AJO v Director-General of Transport [2012] NSWADT 101

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63

Constantin v Commissioner of Police [2013] NSWADTAP 16

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

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

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

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

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

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

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Ward v Commissioner of Police [2000] NSWADT 28

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Andrew Imre Leslie Hegedues (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Gad & Co Lawyers (Applicant)
McCullough Robertson (Respondent)

File Number(s):

2024/00095852

Publication restriction:

Nil

REASONS FOR DECISION

1. Andrew Imre Leslie Hegedues (the Applicant) applied for a firearms licence on 8 November 2023. He previously held a licence until it was revoked in 2020 following an incident.

2. The Commissioner of Police (the Respondent) refused to grant the firearms licence because the Respondent was not satisfied it would be in the public interest to grant the licence based primarily on the Applicant’s conduct during the incident in June 2020.

3. The Respondent made the original decision to refuse the licence application on 25 January 2024. The Applicant sought an internal review which did not occur within the statutory timeframe. The Applicant made an application for review to the Tribunal in February 2024.

4. The Applicant seeks review of the decision refuse him a firearms licence.

Material before the Tribunal

5. The application for review was before the Tribunal. The Applicant provided affidavits from himself and his fiancé, recent pathology reports and written submissions.

6. The Respondent provided a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) including a USB drive, two further bundles containing documents including internal review reasons and a further USB drive as well as written submissions.

7. At the hearing the Applicant, the Applicant’s partner, the Applicant’s treating psychologist and an officer of the Respondent gave oral evidence and were cross examined. Both parties made oral submissions at the hearing.

Applicant’s case

8. The Applicant contends he should be granted a firearms licence because he is no risk to public safety. The Applicant submits he has been sober since his conduct in 2020 and following treatment now has better strategies in place to manage stress in his life.

Respondent’s case

9. The Respondent contends the correct and preferable decision is to refuse the firearms licence application relying on four provisions of s 11 of the Firearms Act 1996 (the Firearms Act):

1. the Applicant is not a fit and proper person to hold a licence (s11(3)(a));

2. the storage and safety requirements are not capable of being met by the Applicant (s11(3)(c));

3. the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant’s intemperate habits (s11(4)(c)); and

4. the issue of a licence would be contrary to the public interest (s11(7)).

10. The Respondent submits the Applicant’s conduct in 2020 in relation to firearms safety was serious and the Applicant has not demonstrated his treatment has finalised sufficiently to be certain that the Applicant is capable of complying with control and safe storage obligations and that there is no risk to public safety if the Applicant was granted a firearms licence.

Role of the Tribunal

Jurisdiction

11. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

12. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

13. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

14. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

15. The underlying principles of the Firearms Act are set out in s 3 and 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. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing:

(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

…

(c)  the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and

(4)  Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—

…

(c)  the applicant’s intemperate habits or being of unsound mind.

…

(7)  Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Consideration

Applicant’s history

17. The Applicant held a category AB firearms licence from 2014 which was extended to include category D in 2019. Following the incident in June 2020 the Applicant’s firearms licence was suspended in June 2020 and revoked in December 2020. The Applicant had applied for a prohibited weapons permit for a silencer in 2019 which was refused in December 2020 at the same time as the revocation.

18. The Applicant would like to use firearms for recreation, to control feral animals and pests on his rural property and would also like to shoot for pest control commercially.

June 2020 incident

19. The Applicant had a problem with alcohol for a number of years from at least 2015. In June 2020 the Applicant was intoxicated and had an extended argument with his partner about his drinking. The Applicant made a threat of self harm and had medication in his possession. The Applicant’s conduct was of such concern police attended the Applicant’s property and he was hospitalised for mental health assessment and medical treatment.

20. Following hospitalisation the Applicant was either unable or unwilling to provide police with the code to a gun safe. Given the extent of the Applicant’s inebriation at the time the Tribunal is not satisfied this aspect of the Applicant’s conduct was deliberate. The NSW Police were able to access the relevant safes containing firearms and ammunition in any case because one safe containing ammunition, firearm parts and safe keys was not locked. The keys from the open safe were then used to open a larger safe containing nine firearms, firearm parts and further ammunition.

21. The Applicant’s evidence was he left the relevant safe open when he was drunk, probably because the safe also contained money he wanted to access to buy more alcohol.

22. The Applicant’s conduct in leaving a large amount of firearms and ammunition unsecured is very serious and posed a great risk to public safety, particularly because a number of children were in residence at his house. The submission of the Respondent was that if the Applicant had been charged and convicted of relevant offences under firearms legislation on the basis of his conduct, the Applicant would have been automatically disqualified from holding a firearms licence for 10 years. The Tribunal accepts the submission only to the extent it is relevant to this review because it demonstrates the seriousness of the conduct. It is the Applicant’s conduct rather than any conviction that is of relevance in this review: see Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

23. The Applicant’s evidence is that he has not consumed alcohol since the 2020 incident and this is supported by the results of periodic medical tests. Following the incident the Applicant underwent various treatment in 2020 and attended six sessions with a psychologist who in a November 2020 report recommended the Applicant “continue with therapy to help maintain abstinence from alcohol consumption”.

Psychologist reports

24. The material before the Tribunal includes two reports from the Applicant’s current treating psychologist Ms De Santa Brigida. The first report dated 12 December 2022 was prepared on the basis of one consultation in November 2022 for the purposes of the earlier licence application made and refused in 2023. The Applicant withheld relevant information from his psychologist during the consultation and her evidence was that this failure would have impacted her assessment at that time.

25. The second report dated 31 October 2023 was prepared on the basis of the first report, further relevant information provided by the Applicant and five subsequent treatment consultations and concludes the Applicant is in remission from severe alcohol use disorder. Since the preparation of the second report the Applicant has attended a further four sessions and a consultation is next scheduled in September 2024.

26. In oral evidence the psychologist agreed anyone in remission from the relevant disorder can relapse. She noted there is a higher risk of relapse at two months and two years of remission, both of which milestones have passed for the Applicant and she has observed no risk markers for relapse. Her evidence was that the Applicant’s treatment was ongoing but has transitioned to require sessions less frequently.

Traffic and other criminal record

27. The Applicant has an extensive traffic and other record in another jurisdiction. All but one of the offences occurred at least 25 years ago. The remaining offence was a level 3 PCA in 2017. The Applicant has a record in NSW of one speeding offence in 2020, one traffic offence in 2019 and one historical driving offence. The Applicant’s traffic record is of low weight in this review because of the historical nature of most of the offending.

Public safety and risk

28. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].

29. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]):

…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

30. In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

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

31. The expression ‘fit and proper’ has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said:

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

32. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression ‘fit and proper person’ (at p 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.

33. Their Honours went on to say (at p 388):

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

34. Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept “fit and proper person” should not be construed narrowly and stated at (pp 348-349):

Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.

35. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76):

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

36. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to ‘the activities in issue’: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in ‘light of the nature and purpose’ of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].

37. For firearms licences, the Tribunal is required to form “a positive state of satisfaction” that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace:  Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45] and (at [19]) the Tribunal noted:

The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

38. The Applicant’s past conduct in relation to firearms safety was serious and is relatively recent. While he is in remission from severe alcohol use disorder the Applicant’s treatment has not finalised therefore potential for the Applicant to relapse exists. The Tribunal is satisfied the risk of relapse is a real and appreciable risk. Further, insufficient time has passed to demonstrate the effectiveness of the strategies the Applicant says he now has in place to manage stress in his life. As a result, in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied the Applicant is a fit and proper person under s 11(3)(a) of the Firearms Act who can be trusted to possess firearms without danger to public safety.

39. For the same reasons the Tribunal also cannot be satisfied the Applicant is sufficiently able to meet the storage and safety obligations of licence holders (s11(3)(c) of the Firearms Act) or will personally exercise continuous and responsible control over firearms (s11(4)(c) of the Firearms Act).

Is it in the public interest for the Applicant to hold a licence?

40. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]):

The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

41. The public interest considerations in s 11(7) of the Firearms Act can also include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]):

Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).

42. Therefore the matters considered at [38] above are also relevant to the consideration of public interest.

43. Further, the Applicant’s conduct in relation to poor firearms safety during June 2020 where a significant amount of firearms and ammunition were essentially left unsecured was of such seriousness in its disregard for public safety that the Tribunal cannot be satisfied the Applicant would not pose a risk to public safety if he was granted a firearms licence.

44. Therefore, in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied it is in the public interest under s 11(7) of the Act for the Applicant to hold a firearms licence.

Conclusion

45. The Tribunal has made findings that it is not satisfied the Applicant should hold a firearms licence under four provisions of the Firearms Act, namely ss 11(3)(a), 11(3)(c), 11(4)(c) and 11(7).

46. It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant’s firearms licence.

Order

1. The decision under review is affirmed.

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: 04 September 2024