Horan v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 6

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Horan v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 6

Hearing dates:

19 December 2023

Date of orders:

8 January 2024

Decision date:

08 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

1. Decision under review set aside

2. A category AB firearms licence is to be issued to the applicant.

3. Such licence is to be subject to a condition to the effect that no firearm possessed by the applicant pursuant to such licence may be stored in any premises not owned, controlled or occupied by the applicant or a firearms dealer.

4. Pursuant to s 64(1)(c) of the CAT Act, the publication of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4 is prohibited.

5. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

6. Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Catchwords:

LICENSING – firearms licensing – revocation of licence – domestic arrangements – association with person under prohibition orders and with criminal history – licence condition.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Review Act 2013 (NSW)

Crimes Act 1900 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194;

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11;

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16;

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50;

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65;

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

Hijazi v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 353;

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

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

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366;

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

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

Meggit v [2022] NSWCATAD 353;

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184;

Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.

Category:

Principal judgment

Parties:

Jai Horan (Applicant)

Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Solicitors:

Hartmann & Associates (Applicant)

Crown Solicitor’s Office (Respondent)

File Number(s):

2023/00180600

Publication restriction:

Pursuant to s 64(1)(c) of the CAT Act, the publication of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4 is prohibited.

reasons for decision

1. The applicant Mr Jai James Horan applied to this tribunal on 6 June 2023 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence, which had been issued on 7 September 2022, to expire on 27 October 2027.

2. That licence was revoked on 9 March 2023 on the ground that a person with close associations with members of organized motorcycle gangs (OMCG) and having criminal associations (his father) was residing with him (exhibit R1, pp 17 – 18). The applicant applied for an internal review of that decision on 8 April 2023 (id., 20) on the ground that his father had never been an OMCG member and had had no contact with an OMCG for 6 or 7 years. He himself had a clean record and had undergone numerous police checks for his work. The applicant stated that if storage of firearms at their house was the issue, he could have them stored at another address.

3. On 10 May 2023, following an internal review, the revocation decision was affirmed on the ground that his father had an extensive criminal history and his links to OMCGs could not be discounted. Storing firearms at an alternative address to ensure that his father did not have access would not negate the risk because of the potential for his father to coerce him or others to provide him with unauthorized access to firearms. The review concluded that his domestic circumstances raised relevant concerns and led to the conclusion that it would not be in the public interest for him to remain authorized for firearms.

4. The matter came on for hearing in the tribunal on 19 December 2023, the applicant and his father participating by AVL. At the conclusion of the open hearing, a confidential hearing was held.

Applicable legislation

5. Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(3)(a) provides that 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”.

6. Section 11(4) stipulates that without limiting the generality of s 11(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: (a) the applicant’s way of living or domestic circumstances….”.

7. Section 24(2) adds that a licence may be revoked “(d) for any other reason prescribed by the regulations”. Clause 20 of the Firearms Regulation 2017 stipulates that “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

8. The issues in the present application are thus whether the applicant is still a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and whether it would be contrary to the public interest for him to continue to do so.

The open evidence

9. The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), certain affidavits (exhibits R2 and R3) and cross-examination of the applicant’s witnesses.

Mr Jai James Horan (applicant)

10. In oral evidence at the hearing the applicant relied on his statement dated 2 November 2023 (part exhibit A1) in which he pointed out that he had a very clean police record and had always done everything by the book. He had also undergone numerous police checks for his work and had never had any problems. He has no ties with anyone in any outlaw motorcycle gangs (OMCGs).

11. He understood that the respondent had cancelled his firearms licence because of his father’s criminal history, and that the firearms were stored at his address, on Settlers’ Way, South Kempsey, which was also his address, but he was currently in the process of changing his living arrangements, which would change the address at which the firearms would be stored. He was planning to move on 6 November 2023 to his new address, [apartment number] Rudder Street, Kempsey.

12. In oral evidence he stated that he had moved to the Rudder Street address a month ago and now lives there with his wife and two children. That is the address where his firearms would be stored.

13. As he has now moved into his new address, his guns would never go near his father’s place. They would only be used on a friend’s property west of Kempsey to hunt deer, boars, dogs and other vermin.

14. Cross-examined by Mr Madden, the applicant explained that before moving to Rudder Street a month ago he had been living in Newcastle four nights a week and in Kempsey three nights a week, since April 2023. Before then he had lived with his father for about six months. His current residence lies about a 15-minute drive from his father’s premises at Settlers’ Way, South Kempsey. When he himself lived at the Settlers’ Way property, it had been occupied by his father and by Kelly [surname], his father’s girlfriend.

15. He is a machine operator and since April, and in the preceding year, he has been operating a grader as a subcontractor to Fulton Hogan on behalf of his father’s company, Advance Plant Hire (APH), but he is not a manager. The contract with Fulton Hogan expires in 2025. He has worked for Advanced for 2½ years and before that was with All Pavement Solutions. He has no other business links with his father.

16. He applied for a firearms licence because he wants to go hunting with his brother-in-law. He had not done so during the six months in which he had held a licence because his work schedule had been very busy at the time. He would be planning to shoot on the property of Wayne Brown, his father-in-law, with whom he had discussed his application. He had not discussed it with his father or Kelly, but had told them he was intending to apply. He had thought at the time that they already held licences.

17. When he had held a licence, he had purchased a .223 for hunting deer, which were a real problem in the area, a double-barrelled shotgun for pigs and a 410 and a .22 for rabbits and hares. He had obtained some of the guns from Kelly. They had been stored at the Settlers’ Way property where he had been living at the time.

18. His father’s criminal history had arisen before he was born, and he did not know much about it, though he understood there had been an altercation. There had been some connection with the Bandidos OMCG, but he knew of no ties with an OMCG for seven years.

19. He had not discussed his application with his father or with Kelly, but had told them about it. The subject had come up in conversation, but he had been under the impression that they already had their licenses. He did not know why his father’s application and his own had been made on the same day. He had discussed his application only with his brother-in-law.

20. He is not a manager at APH Civil but did try to help the company to get work, as if it were to fold up, he would be out of a job. He did not discuss the management of the company with his father because he was based at Newcastle, though sometimes he would need his father’s approval for example to take somebody on. He would see his father on Friday afternoons to deliver the daily worksheets for Newcastle. Formerly he would sometimes spend a night at Settlers’ Way, and sometimes would stay with his father-in-law.

Mr Derek James Horan (applicant’s father)

21. Mr Derek Horan adopted his undated written statement (part exhibit A1) in which he wrote that his son Jai no longer lives at Settlers’ Way as he was currently staying in Newcastle to work. When he returned to Kempsey, he would be moving into his own address. Because of Jai’s work commitments, he would be lucky to see him once a month.

22. He himself had cut all ties with all OMCGs as it was just a phase and was no longer part of his life. For the past 7 years he had been running a successful business with an earthwork civil construction company, with 10 employees.

23. In cross-examination the witness said that he had written his statement, not Kelly. When it was pointed out to him that both his statement and Kelly’s contained the same misspelling of the word “writing”, he maintained nevertheless that he had written the statement. He had applied for a firearms licence, as he had grown up with them, using them since he was 8 years old. He had last held a licence in his late teens. His own application had been refused, but Kelly, who has lived with him for 8 years, had a licence. The firearms were stored in a safe on the property and he had never used them or had access to them, as Kelly would not allow it. The applicant had stored his firearms in the same safe.

24. He is the owner and sole director of APH Civil, which builds highways. He employs 10 people, including Jai, who operates a grader and other machines and “looks after the boys at Newcastle” in a kind of management role. He had worked for Lend Lease and other companies before 2017 and had been a leading hand.

25. He did not have a history of violence and threatening behaviour. The 1996 conviction for assault occasioning grievous bodily harm had arisen when he had gone to someone’s house with his brother and another and asked for the return of stolen property. He had not attacked the other person but had been attacked. He had not defended the charge on the ground of self-defence, as his lawyer had advised him to plead guilty.

26. Asked about the 2003 AVO, he explained that his brother and sister had been molested, and someone had yelled at him that he was a paedophile. He had complained but did not recall saying that he would “drop” him or that he should watch his family. He was already in trouble and did not say those things. The 2015 AVO was obtained by an ex-girlfriend and had been in force for three months. He had never been violent towards anyone in his life, apart from the one altercation.

27. The firearms prohibition order issued in September 2023 arose from a search of his premises while he was at work and some fireworks and other items were found. He had kept the fireworks, including sparklers, to show his daughter. The knuckledusters that were found he had owned since he was a kid, and had done martial arts. He had bought them on EBay later but could not recall when. He had purchased them as part of a phase, as many others had them. The extendable baton also came from EBay. He had not known that it was prohibited. A .22 round had also been found.

28. He admitted cultivating marijuana and having 850 g of dried cannabis. He kept it for personal use as he does smoke to alleviate pain from a kidney transplant. He grows a 12-month supply for himself. The gel blaster belonged to his daughter, as they are legal in Queensland and she brought it with her from Queensland when visiting. She does not bring it now that she knows that it is illegal in New South Wales. He is now on bail pending charges relating to drugs, the crackers and the gel blaster. He did not have any bail warnings, although on one occasion he had failed to appear because he had to undergo surgery.

29. His contacts with the Bandidos had arisen when he was working as a leading hand for Leighton on Kempsey Bypass. Some of the subcontractors were members of the club. On his first contact in 2012 he rode around with them and shared a few drinks. He could have joined, as he was bored because his wife was cheating, but after 12 months he had observed more of their thug activities and decided to get out. In addition, he could not take the time off work to go on rides. He agreed that in 2015 he had told police that he was a “nominee” for the Bandidos, which entitled him to ride with them but did not permit him to go into meetings. They had asked him to join and had given him 12 months to think it over.

30. There were only five other members, all old fellows, in the Mid-North Coast chapter. He himself had never been a member. He had no other contacts with them except with one member who was a water carter and had delivered water to him. He also gave another member a job, but he wrecked the trucks and he had to get rid of him. He still buys water, but now there are competitors in the field.

31. Asked whether Jai worked as a manager in Newcastle, Mr Horan said he keeps an eye on the boys and reports back, but does not have relations with the big contractors. He had not been to see him for a while. He forwards the daily dockets on, or speaks on the telephone. His mother had kept him away from Mr Horan for 10 years. Jai had an apartment in Kempsey and stayed at Settlers’ Way occasionally, but never lived there. He moves between his father-in-law’s property upriver and his apartment, spending half the week in Newcastle and then returning to Kempsey at the weekend. He had last seen Jai at Kempsey 1½ months ago. Over the past year he had come occasionally to the Settlers’ Way property to get oil or grease, but went direct to the shed and did not call on him.

Ms Kelly [surname]

32. In her undated statement Kelly stated that Jai was no longer living at Settlers’ Way, South Kempsey because of his work in Newcastle, where he is currently staying until moving back to Kempsey to his new fixed address.

33. She could confirm that Derek Horan has had nothing to do with any outlaw motorcycle club within the last 7 or 8 years. Kelly was not required for cross-examination.

The confidential evidence

34. The confidential evidence consisted of an affidavit by Senior Constable Nicholas Kaluski of the Firearms Registry’s Compliance and Enforcement Unit (confidential exhibit CR4), which contained police intelligence reports and event reports containing confidential criminal intelligence in relation to Derek Hogan and his associates.

35. [Not for publication]

36. [Not for publication]

37. [Not for publication]

38. [Not for publication]

39. [Not for publication]

40. [Not for publication]

41. [Not for publication]

42. [Not for publication]

43. [Not for publication]

Respondent’s submissions

44. The respondent relied on written submissions filed on 21 November 2023 which, after setting out the background and the applicable law, pointed out that in his licence application he nominated the Settlers’ Way property as his residential address and, before his licence was revoked, stored his firearms at that property. His father, Derek Horan, resides at that property with his partner, Kelly, and a primary issue in the proceedings is the applicant’s association with his father. There was evidence that the applicant and his father previously associated, and continue to associate. In particular, there is evidence that the applicant and his father reside at the same premises and that they run a business together.

45. Derek Horan is currently subject to a weapons prohibition order and a firearms prohibition order, served on 19 September 2023. During a search of the property on 19 September 2023, police had located a number of items including an indoor hydroponics cannabis plantation and a number of other prohibited items including a gel blaster replica firearm, an extendable baton and a knuckle duster. He was subsequently arrested for possessing a prohibited firearm.

46. He was accused of threatening behaviour by a former partner on 28 November 2015, leading her to take out an AVO against him, and was accused of making threats towards a New South Wales Corrective Services officer on 16 September 2003, resulting in the officer taking out an AVO against him. In 1999 he was convicted under s 558 of the Crimes Act 1900 for maliciously inflicting grievous bodily harm, and in January 2015 informed police that he was a nominee for the Mid-North Coast Chapter of the Bandidos OMCG.

47. Corporation searches showed that Advanced Plant Hire Pty Ltd (APH) was registered as a company limited by shares on 20 March 2017, and showed Derek as both company secretary and sole director (exhibit R3, tab 10). Facebook posts depicted the applicant as associated with APH and as being mentioned in some of its publicity. He has been working for or running APH with Derek since at least 22 September 2021. The applicant’s evidence is misleading in that it attempts to distance the applicant from Derek and the Settlers’ Way property, but omits that the applicant and Derek operate or work together in a company.

44. Derek’s assertion that he is lucky to see the applicant once a month could not reasonably be believed in circumstances where they appear to have been running a business together for the past several years, and even if they were not seeing each other, they would need to be in regular correspondence. The applicant had given no evidence that he has ever resided in Newcastle and there is no objective, independent evidence in support of his claims. The friend’s property he refers to as the one where he would go shooting is the same property as the one recorded in Derek’s 24 July 2022 firearms application. The applicant had failed to be transparent with the tribunal about his continuing association with his father and had deliberately tried to distance himself from Derek. Further, the address at Rudder Street, Kempsey, is only a 10-minute drive from the Settlers’ Way property (exhibit R3, tab 12)..

45. From the above, the tribunal could not be reasonably confident that the applicant does not continue to reside with Derek and, at the very least, that he does not have a continuing close relationship with Derek where he would not be vulnerable to influence or coercion. His application also arises in the context of a number of failed applications by his father and Kelly.

46. The history of the matter showed that Derek wishes to have a licence but has been unsuccessful in obtaining one, that Kelly and the applicant, who reside with Derek, have lodged very similar applications to Derek at similar times and that the applicant applied for a licence only after Kelly’s licence expired. The natural inference from that history was that Derek is using Kelly and the applicant as a means of obtaining firearms and consequently that the applicant may already have been the subject of Derek’s influence or coercion in that regard.

47. The issue of a licence to the applicant would be contrary to the public interest because he maintains an association with his father, even if it could be established that he no longer resides with him at the Settlers’ Way property. The tribunal has held that where an applicant has voluntarily associated with persons having significant criminal histories or involvement with criminal organizations and activities, that association may create a danger to public safety with which the Commissioner is concerned and that person may therefore not be fit, in the public interest, to hold a licence.

48. The familial association alone created cause for concern that the applicant could be pressured to provide access to firearms, parts or ammunition or to store such items on behalf of Derek. It was well known that criminal organizations often seek to make use of persons who have no criminal record in the furtherance of their criminal activities. One of the forms that can take is arranging for such persons to store prohibited firearms on behalf of gang members.

49. Granting a licence to the applicant would raise a real risk that Derek might seek to make use of any licence granted to the applicant for the furtherance of criminal activities. Any firearms acquired by or stored on behalf of Derek could then be used in the commission of violent offences by Derek or other persons.

50. Further, because of the applicant’s character, activities and associations, he is not a fit and proper person who could be trusted to have possession of firearms without danger to public safety or to the peace. In particular, the respondent submitted that he is not possessed of “sufficient moral integrity and rectitude” as to permit him to be safely trusted to use and possess firearms. His failure to be transparent about his association with his father raised doubts about his fitness and propriety to hold a licence.

51. Given Derek’s history and past conduct, there would be a risk to public safety from the existence of firearms on premises where he resides, which is consistent with the Commissioner’s decision to subject him to a firearms prohibition order and a weapons prohibition order. Given the close and continuing relationship between Derek and the applicant, in which they are bound not only by a parent-child relationship but also cohabit and run a business together, the respondent submitted that there were concerns about the applicant’s ability personally to exercise continuous and responsible control over firearms in the face of potential pressure from his father to access them.

52. In oral submissions at the open hearing, the respondent submitted that the case was one of his association with Derek, even if there was no voluntary contact. He was an employee of his father’s business, fulfilling a kind of management role. This was a positive relationship which could lead to coercion or influence leading to a demand. His evidence was not credible, as he claimed that he had not had a conversation with his father about his licence, but had applied on the same day as his father in July 2023, which suggested some form of cooperation, and had stored his firearms in Kelly’s gun safe. His supporting statements by Kelly and Derek were similar and appeared to have been written by the same person, even incorporating the same spelling error, and his evidence about his place of residence contained inconsistencies with his father’s evidence.

53. Derek had pleaded guilty to assault occasioning grievous bodily harm in 1996, in an incident that caused the victim to be hospitalized and comatose. There had been AVOs taken out against him in 2003 and 2015, and in 2023 he was made subject to an FPO and a WPO because of his possession of a marijuana cultivation and a number of other prohibited items. He had a long history of threatening and violent behaviour and, living only 10 minutes away from the applicant, could possibly exercise coercion or influence over him.

54. The respondent submitted that the applicant’s applying for a licence on the same day as his father suggested collusion. Fitness and propriety were relevant in the present case, but only in relation to the applicant’s association with Derek. That association would represent a risk to public safety, and that was all that was needed.

Consideration

Approach

59. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

60. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

61. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that 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(4)(c) also provides that 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 the applicant’s intemperate habits or being of unsound mind.

62. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Fit and proper person

63. The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is no longer a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence “if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence”.

64. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies:

The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

65. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:

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, or 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.

66. 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].

67. In this application the respondent’s case on fitness and propriety does not seek directly to impugn the character or activities of the applicant himself, but relies on s 11(4), which provides that 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: (a) the applicant’s way of living or domestic circumstances”. The circumstances relied on are that the applicant was (until recently) residing at the same address as his father Derek Horan and had a continuing business, and presumably personal, relationship with him.

Public interest

68. The main ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to 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.

69. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

70. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.

71. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] – [66].

72. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Mr Derek Horan

73. An affidavit dated 11 October 2023 by Senior Constable Gregor Barone of Strike Force Raptor, State Crime Command North details several aspects of Mr Derek Horan’s background (part exhibit R2). He deposes that on 19 September 2023, along with several other officers, he served a weapons prohibition order (WPO) and a firearms prohibition order (FPO) on Mr Horan, at which time he was informed that a compliance search of his Settlers’ Way premises would be conducted. He told police that he had cannabis growing in his garage for his personal use.

74. A Strike Force Raptor search identified an indoor hydroponics cannabis setup in the garage, as well as a replica gun capable of shooting gel pellets. A search located a number of other items, including 36 g of cannabis, fireworks, an extendable baton and knuckledusters (event E 96940716). He was arrested for possession of a prohibited firearm, the report noting that the matter was OMCG related (id., 14).

75. Event report E 59686554, 28 November 2015, recorded Derek’s former partner accusing him of threatening behaviour, leading to her taking out an AVO against him. While she was walking along a footpath in Kempsey, she saw his vehicle pulled up, Derek winding down his window, pointing to her and saying “Your days are numbered”. She explained that Derek’s premises were broken into several months previously and he believed she was responsible, but she denied responsibility. The report adds that “Given the Accused person’s involvement with the Bandidos and the Accused person’s choice of words, police have concerns for the Victim’s welfare” (part exhibit R2, p 25).

76. Derek denied threatening her, but did say that he told her that her day was coming, by which he said he was referring to the police catching up with her following her alleged drug use (id., 26).

77. Report E 18434561, 16 September 2003, outlined a complaint made by Michael K*** against Derek which resulted in Mr K*** taking out an AVO. Mr K***was at a service station refuelling with his young daughter when Derek approached him and made certain threats, including “I’m gonna take every crim in Richmond around and show them where you live”, “You better watch your family” and “You better be careful walking through the park in Richmond.
    You might get a lump of wood in the back of your head” (id., 30). The applicant alleged that Mr K*** , knowing that the applicant’s younger brother and sister had been molested, called him a pedophile and he had objected, but denied making the threats reported.

78. The affidavit also gave further details about the events leading up to the grievous bodily harm charge (event E 529093, 7 September 1996). It related that the victim answered a knock on the door, and was then repeatedly assaulted by three men, including Derek, who during the assault removed a parka the victim was wearing which he said belonged to him. “This jacket was proceeds from a break, enter and steal offence from the premises of POI 1 [Derek]”, the report stated: (id., 36). At the hospital the victim suffered from an apparent brain haemorrhage and was resuscitated by medical staff before being placed on a respirator. Derek’s version is that he attended at the victim’s premises in company with his brother and another man in order to retrieve some property which he believed the victim had stolen from him, but denied attacking victim, saying that it was he who had been attacked.

The applicant’s links with Derek Horan

79. Derek Horan’s criminal history is relevant to the present application if it bears on the issue of whether the applicant’s way of living or domestic circumstances give rise to the belief that he may not personally exercise continuous and responsible control over firearms (s 11(4)(a)).

80. In Meggit v Commissioner of Police [2022] NSWCATAD 353, [27], Griffin SM held that the tribunal must objectively be satisfied from established facts of the matters set out in s 11(4)(a), that is, whether the applicant’s domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.

81. The tribunal observed in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149, [31] that given the breadth of the discretion and the overriding object of public safety, there was no basis for differentiating between conduct of the applicant themselves and conduct of another that may impact on public safety in the context of a firearms licence. Consequently, the conduct of the applicant’s father was a relevant factor in determining whether the applicant might personally exercise continuous and responsible control over firearms.

82. The tribunal has also made clear that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organizations if they remain associated with such persons or organizations: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, [90].

83. In support of the contention that the applicant has links with his father Derek Horan that could raise safety concerns, the respondent submits that the applicant’s documents (exhibit A1) were misleading in that they attempted to distance the applicant from Derek and the Settlers’ Way property, but omit that the applicant and Derek run or work for, or both, the same company, APH. Derek’s assertion in his written statement that he was lucky to see the applicant once a month could not reasonably be believed in circumstances where they appeared to run a business together and, even if they were not seeing each other, they would need to be in regular correspondence. The applicant had given no evidence that he had ever resided in Newcastle and there was no objective, independent evidence in support of the claims by the applicant, Derek and Kelly.

79. Nor was there any objective evidence to show that he had moved into a new property in Kempsey. His attempts to distance himself from his father by asserting that he had changed address was misleading in circumstances where he was aware that his licence was cancelled because of his association with his father. He had failed to be transparent with the tribunal about his continuing close association with his father. Even if he had moved to the Rudder Street, Kempsey, property, that address was only a 10-minute drive from the Settlers’ Way property (exhibit R3, tab 12).

80. At the hearing the applicant testified that about a month previously he had moved into the Rudder Street property at the apartment number specified and that his wife and children were residing there. Derek and Kelly in their written statements had foreshadowed such a move. Previously he had been living four nights a week in Newcastle and three nights at Kempsey. His apartment was a 15-minute drive from the Settlers’ Way property.

81. In his oral evidence he said that he had been working for APH for 2½ years as a grader operator, but was not a manager. He did, however, try to help the company to obtain work, because if it were to fold up he would be out of a job. He would commonly see his father on Friday afternoons to give him the daily work dockets, though he did not discuss the management of the company because he was working in Newcastle. Sometimes he did contact his father, for example in order to gain approval to take somebody on. Derek confirmed that the applicant was working as a grader operator, adding that he “look[ed] after the boys at Newcastle”.

82. He had discussed his licence application with his father-in-law, but not with Derek or Kelly, believing that they already had licences. He did however mention it, as the subject had come up in conversation.

Evaluation

88. The respondent’s case in support of licence revocation rests substantially on the applicant’s connection with his father, Derek Horan, who is currently subject to a WPO and a FPO issued on 19 September 2023. He has a 1996 conviction for assault occasioning grievous bodily harm which occurred when he, his brother and another attended at the victim’s property for the purpose, he said, of requesting the return of certain property that he believed the victim had stolen from him. The victim was hospitalized with a brain haemorrhage and became comatose for a time. Derek maintains that the victim attacked him and that he retaliated in self-defence, but that defence was not raised at the hearing (he pleaded guilty). It seems less than probable, when three men with a grievance approach a man on his own who suffers serious injuries as a result, that it was the victim who initiated the violence.

89. Derek was accused of threatening behaviour by a former partner in 2015, leading to her taking out an AVO against him. He had been accused of threats of violence towards a Corrective Services officer in 2003 which also resulted in an AVO against him. More recently, he was made the subject of a WPO and an FPO in 2023 following a police search of his premises that located an indoor hydroponics cannabis arrangement and a number of prohibited items. He admitted that he had been involved with the Bandidos OMCG for a time as a “nominee”. though never as a member, but said he had broken all ties with them seven or eight years ago, having become disenchanted with the organization because of its criminal activities.

90. It may be noted that Derek and Kelly have had a history in relation to firearms licensing:

• on 2 April 2013, Derek applied for a licence, which was refused;

• on 27 September 2016, Derek applied for a licence, nominating a rural property at Collombatti on which he proposed to hunt; that application was also refused;

• on 21 October 2016, Kelly applied for a licence nominating the same rural property as in Derek’s 27 September 2016 application and was issued with a licence;

• in February 2022, Kelly applied to renew her licence but failed to implement her photographic advice; consequently her licence expired on 30 April 2022.

• on 24 July 2022, Derek applied for a licence, stating that he had been given permission to shoot on a property at Tooroka, which was also refused;

• also on 24 July 2022, the applicant applied for a licence nominating the same rural property at Toorooka and was granted a licence on 7 September 2022, which was revoked on 9 March 2023;

• on 5 September 2022, Kelly made an application for a licence, which was refused.

91. [Not for publication]

92. On the evidence before the tribunal it would not be in the public interest for the applicant to hold a firearms licence while resident in the same premises as Derek Horan or to store firearms in such premises. Such a domestic arrangement could carry a real and appreciable risk to public safety.

93. The applicant’s evidence, however, is that until a month ago he had been living four nights a week in Newcastle and three at Settlers’ Way, and that since then he has been resident at [apartment number] Ruddock Street, Kempsey, which is a 15-minute drive from Settlers’ Way (10 minutes by the respondent’s estimate) with his wife and children. Derek and Kelly’s evidence provides a measure of support for that assertion. The respondent disputes that claim, saying there is no objective evidence for it.

94. The respondent also challenges the applicant’s contention that he is involved with his father’s company, APH, only as an employee, though one who seeks to help its marketing profile, and not as a manager. His role is that of a grader operator, as a kind of leading hand for the Newcastle operations, delivering the work dockets to his father on Fridays and occasionally telephoning him in connection with a personnel matter. He knew his father had a criminal history, which at one stage involved some kind of altercation, but said it mostly arose before he was born.

95. In Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156, Scahill SM set aside a licence revocation decision where the applicant had no criminal record, but had been an OMCG member. But he had held a firearms licence for 4½ years while an OMCG member without incident (at [141]). Similarly, in Hijazi v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 148 the applicant had links with the Comancheros OMCG and his brother was a high-ranking member of it, but Frost SM found no evidence that his behaviour was thereby “tainted”, adding that where an applicant has a fully compliant history, the best indicator of future behaviour was past conduct. His holding of a licence presented no real or appreciable risk to public safety.

96. The applicant is a married man with two children who has no criminal history, seemingly not even a traffic violation. He has no history of violence or threatening violence, no record of drug or alcohol abuse and no history of mental health problems. He states, and it is not disputed, that he has undergone many police checks in connection with his work and no queries have ever been raised about his fitness. The evidence of a person with such a profile commands a certain measure of credibility unless there is evidence to the contrary. It is well known that OMCGs make use of persons with no criminal record as cover for their criminal activities, but here there is insufficient evidence to suggest that there is any risk of such coercion or influence over the applicant, especially as he no longer resides at the same premises as Derek.

97. The respondent objected that the applicant contradicted himself by saying that his father had never been involved with an OMCG, but had then said he had broken his ties with the Bandidos seven or eight years ago. He explained that what he meant was that his father had never been an actual member of the Bandidos, though he had associated with them until seven or eight years ago. That explanation is ex facie plausible as an account of his own state of mind, given that Derek’s evidence in the tribunal was to the same effect, that he had been nominated for membership but had never become a Bandidos member.

98. The respondent also contended that the applicant had not been transparent about his involvement in his father’s earthmoving business. His written statement indeed does not mention that work relationship, but the primary focus of the proceedings had been on the concerns raised by his residence under the same roof as Derek, not with his employment relationship. Thus, the revocation notice dated 9 March 2023 states that “Due to your domestic living circumstances, consideration must be given to the possibility that you may be coerced into giving access to firearms….” (exhibit R1, p 17). Similarly, the internal review decision concludes that “I believe that your domestic circumstances raise relevant concerns and leads me to believe that it would not be in the public interest for you to remain authorised for firearms” (id., 24). At the hearing he was quite forthcoming about the work arrangements, however, and his evidence was not refuted.

99. It was also submitted that the fact that Derek and the applicant applied for licences on the same day, 24 July 2022, suggested some kind of cooperation or collusion. The applicant denied any such cooperation, saying that he had believed at the time that both Derek and Kelly already had licences and he had only mentioned his intention to apply when the subject came up in conversation. As it is hard to see what advantage they could have hoped to gain by applying on the same day, indeed quite the contrary, it seems unlikely that there was any nefarious intention behind the applicant’s action in that regard.

100. [Not for publication]

101. [Not for publication]

102. The totality of the evidence leads to the conclusion that the applicant is a fit and proper person to hold a firearms licence without risk to public safety or order, that nothing in his domestic arrangements would impair his ability to exercise continuous and responsible control over firearms, and that his holding of the licence would present no real or appreciable risk to public safety, as that concept is understood in Webb. It would thus not be contrary to the public interest for him to hold a firearms licence. I so find.

103. The decision under review should therefore be set aside and a category AB licence issued, but subject to a condition under s 19(1) of the Firearms Act to the effect that no firearms possessed by the applicant pursuant to such licence may be stored in any premises not owned, controlled or occupied by the applicant or a firearms dealer. Confidentiality orders pursuant to the Civil and Administrative Tribunal Act 2013 (CAT Act) are also to be made.

Orders

104. Decision under review set aside.

105. A category AB firearms licence is to be issued to the applicant.

106. Such licence is to be subject to a condition to the effect that no firearm possessed by the applicant pursuant to such licence may be stored in any premises not owned, controlled or occupied by the applicant or a firearms dealer.

107. Pursuant to s 64(1)(c) of the CAT Act, the publication of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4 is prohibited.

108. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

109. Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

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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: 08 January 2024