Housea v Commissioner of Police, NSW Police

Case •

[2014] NSWCATAD 54

•

01 May 2014

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Housea v Commissioner of Police, NSW Police [2014] NSWCATAD 54
Hearing dates:11 October 2013
Decision date: 01 May 2014
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Scahill-Senior member
Decision:

The Tribunal affirms the decision under review to refuse the applicant a firearms licence

Catchwords: reasonable cause to believe -
may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.
Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996.
Cases Cited: Commissioner of Police vs Toleafoa [1999] NSW ADTAP 9
Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
England vs Commissioner of Police New South Wales Police [2006] NSWADT 95 at 39
Keane vs Commissioner of Police, New South Wales Police [2008] NSW ADT 68. LY v Commissioner of Police, NSW Police [2004] NSWADT 115
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357
Osborne vs Commissioner of Police New South Wales Police Service (GD) [2000] NSW ADTAP 10 at 45.
Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20
Tolley vs Commissioner of Police [2006] NSWADT 149 at 31.
Ward vs Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28
Category:Principal judgment
Parties: Nicoletta Housea
Commissioner of Police, NSW Police
Representation: N Housea (Applicant in person)
Bartier Perry (Respondent)
File Number(s):133177

reasons for decision

BACKGROUND

  1. This is an application by Mrs Nicoletta Housea seeking review of the decision of a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse her applications for a category ABG firearms licence and a Probationary Pistol licence category H. The grounds relied on by the Commissioner to refuse her application for a licence was that he had "reasonable cause to believe" that she "may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances".

  1. The circumstances on which the Commissioner based his belief were the circumstances surrounding the mental health and character of Mrs Housea's husband. Mr Housea had a history of being diagnosed with schizophrenia and had been subject to an Apprehended Violence Order in relation to Mrs Housea commencing in December 2010. Further he was convicted in October 2013 of making a false declaration in relation to a firearms matter and placed on a 2 year good behaviour bond.

  1. Mrs Housea had provided a statement to police in relation to Mr Housea being charged with offences of violence against her. In that statement she had said that she would go along with her husband when he became angry as he would become violent. The Commissioner concluded that when in the company of her husband, Mrs Housea may not personally exercise continuous and responsible control over firearms because of his character.

The Tribunal's jurisdiction

  1. The Tribunal has jurisdiction to hear Mrs Housea's application by virtue of s.75 (1) (c) of the Firearms Act, 1996 and s.38 of the Administrative Decisions Tribunal Act 1997.

  1. Section 63 of the Administrative Decisions Tribunal Act 1997 requires the Tribunal to make the correct and preferable decision. It empowers the Tribunal to affirm, vary, set aside and substitute a decision of its own or set aside the original decision and remit the matter for reconsideration by the administrator.

  1. The Tribunal is obliged to reconsider all the material considered by the original decision maker together with any further relevant material. (Petty v Commissioner of Police, NSW Police Service [2003] NSWADT 20 at [4]; Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77)

Legislation

  1. The Firearms Act 1996 ("the Act") makes provision for the regulation, control and registration of firearms. The principles and objects of that Act are set out in s.3. Sub-section 3(1) of that Act provides:

"3(1) The underlying principles of this Act are:
(a) to confirm firearms possession 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 control upon the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(iii) to facilitate a national approach to the control of firearms".

  1. Sections 10 to 18 of the Act relate to the issue of a firearms licence. Section 11 sets out some general restrictions on the issue of a firearms licence. Some of the matters relevant to this Application are as follows:

"Section 11(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 .........
Section11 (4) Without limiting the generality of sub-section (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, or...."

The Hearing

  1. The hearing of this matter related only to an application made by Mrs Housea to review the Respondent's decision to refuse her application for a firearms licence. Mr Housea had also lodged an application to review the Respondent's decision to refuse his application for a firearms licence. However on the morning of the hearing, Mr Housea withdrew his own application for review of the decision to refuse him a firearms licence.

  1. The Tribunal understands that the reason Mr Housea withdrew his application for review was that he had been convicted under section 70 of the Firearms Act on 3rd October 2013 for making a false declaration on a p 650 form he completed in order to access and use firearms at a shooting range. He was placed on a good behaviour bond for two years.

  1. The Respondent noted at the hearing that sections 11 (5) (b) and 11 (5) (d) of the Firearms Act 1996 mandatorily required the Respondent to refuse a licence application from a person convicted of certain firearms related offences and who were subject to a good behaviour bond. This meant the respondent had no discretion and must not issue a licence to Mr Housea.

Materials before the Tribunal

  1. The Respondent relied upon the materials it had prepared in relation to both Mr Housea's application and Mrs Housea's application during the course of the hearing. The Commissioner, relied on the material contained in the brief of evidence that had been filed and served on 21 June 2013. That material contained the following documents:

  • Mr Housea's firearms licence history;
  • COPS Events relating to Mr Housea;
  • A report from Sergeant P. Leaney 25 January 2013 with attachments ;
  • Mrs Housea's application for a Firearms Licence February 2013;
  • Notice of Refusal 17 April 2013.
  • Internal Review application from Mrs Housea received 8 May 2013;
  • Internal Review decision and statement of reasons, dated 1 6 May 2013; and
  • Mrs Housea's application to the Tribunal filed on 31 May 2013.

  1. The Commissioner also relied on the following material that was subsequently filed and served :

  • 3rd October 2013 Statement of Evidence of Senior Constable Michael Azzopardi New South Wales Police Force - relating to conviction on 3rd October 2013;
  • 3rd October 2013 Respondents Outline of Submissions
  • 9th October 2013 Statement of Evidence of Sergeant Paul Leaney New South Wales Police Force; and
  • 10th October 2013 Respondents Supplementary Submissions.

  1. Sergeant Leaney gave oral evidence for the Respondent.

  1. The Applicant, Mrs Housea relied on a document received at the New South Wales Firearms Registry on 8th May 2013, addressed to the internal review committee from herself.

  1. Mrs Housea also relied on a document prepared and filed by Mr Housea on 23 July 2013. This document referred to both Applications for review of the decisions by the Commissioner to refuse firearms licences to both Mr Housea and Mrs Housea.

  1. The material filed by Mrs Housea contained her responses to the statements and allegations contained in the Commissioner's brief of evidence.

  1. The Tribunal gave leave under section 71 of the ADTA for Mr Housea to represent Mrs Housea as an agent. Two of the Housea's children were present in the hearing. Mrs Housea gave sworn oral testimony and was cross examined.

The Decision subject of Review Application

  1. Mrs Housea had lodged an application for a Personal Firearms Licence nominating genuine reasons as Sport/Target shooting and Firearms Collection dated 30 January 2013. The Application form was accompanied by a Pistol Safe Handling Course Completion Certificate and a Completion of NSW Firearms (Longarms) Licence Qualification Course Certificate.

  1. The Genuine Reason Form for Sport/Target Shooting nominated that Mrs Housea sought a licence for Categories A, B and H. These categories include a range of rifles and pistols. The issuance of a licence for Sport/Target Shooting authorises the licensee to possess and use the firearms in each particular category.

  1. Mrs Housea's Genuine Reason Form for Firearms Collection sought licensing in relation to Categories A, B, C, D and H - a range of rifles and pistols. The issuance of a Licence for Genuine Reason Firearms Collection authorises the licensee to have possession of the firearm types applied for - not their use. The licence does not authorise possession of ammunition for the firearms being collected.

  1. However, in her application for Internal Review to refuse her a firearms licence received at the Firearms Registry on 8th May 2013, Mrs Housea has sought to confine the scope of the licensing:

"The application I have made is to participate at club activities under direct supervision of range officers issuing me with the club's own firearms of their choice." and
"My firearms licence should be issued to me to be able to participate in pistol activities at the club and target shooting."

  1. Sergeant Leaney's Recommendation Statement of dated 25 January 2013 was provided to the firearms Registry when it was considering Mr and Mrs Housea's firearms applications. The Statement includes comments canvassing the possibility that a licence might be issued with conditions such that:

"no firearm is permitted to enter the family home, that any firearm used...is done under strict supervision and any firearm used is restricted to low calibre rounds at approved firearms ranges only."

  1. The Respondent's Internal Review Statement of Reasons does not address this potential conditional licensing in relation to Mrs Housea.

  1. The Respondent's submissions in relation to 'conditional licensing ' - at paragraphs 8 and 84 - reject conditional licensing as inappropriate in relation to Mr Housea - but do not specifically deal with conditional licensing for Mrs Housea.

The Respondent's Reasons for Refusal of Mrs Housea's Application.

  1. The Commissioner's reasons for refusing Mrs Housea's application were set out in the Internal Review Statement of Reasons document dated 16 May 2013. In short those reasons noted the following:

  • Mrs Housea had no criminal record and appears to be a person of good character;
  • Mrs Housea had never been issued with a firearms licence;
  • On 14 December 2010 Mr Housea became subject of an apprehended violence order with expiry date of 14 of December 2011. The order had been issued for the protection of Mrs Housea and their two children;
  • The apprehended violence order was revoked at Campbelltown Local Court on 18th of January 2013.

  1. In these circumstances the Respondent noted that Mrs Housea was a person of good character who held the law in high regard. However the Respondent did not consider that Mr Housea who had a lengthy mental health history was suitable to hold a firearms licence. Given that Mr and Mrs Housea lived together, the Respondent regarded the possibility that Mr Housea may gain access to firearms by placing Mrs Housea under duress must not be ignored. The Respondent did not believe that it was unreasonable to consider that when in the company of Mr Housea that Mrs Housea may not personally exercise continuous and responsible control over firearms because of Mr Housea's character.

  1. At hearing, the Respondent also referred to Mr Housea's conviction for making a false statement in relation to an application to use firearms. This further added to the concerns that were she to possess a firearm Mrs Housea may be placed under duress from Mr Housea to allow him to use the firearm.

The COPS Events

  1. The Respondent's statement of reasons in response to the internal review application referred to a number of COPS events concerning Mr Housea. The Respondent submitted that these demonstrated concerns about Mr Housea's mental health and a history of intimidatory violence in the home. These COPS records were included in the brief of evidence.

  1. The first record was a complaint made by Mrs Housea's father to the police on 17 September 2006 concerning a verbal argument with Mr Housea when Mr and Mrs Housea were living with Mrs Housea's parents. The COPS incident expresses concern for Mrs Housea who was pregnant at that time. The COPS event notes that Mr Housea had not been receiving treatment for his paranoid schizophrenia and there had been escalating incidents over the preceding 6 month period in the home. No police action was taken against Mr Housea in relation to this matter as his father in law did not wish to proceed with action. It appears Mr Housea moved out of his parents in law's home after this.

  1. A COPS event on 8th February 2010 notes that Mrs Housea had contacted police alleging that her husband had tried to choke her. This had occurred after an argument in which Mr Housea wished to change the family's name. Mr Housea had left the home with their 3 year old son. When the police attended the home however, Mrs Housea retracted her allegations and indicated that she did not wish police to proceed with action against her husband.

  1. On 22nd October 2010 a COPS event refers to an incident at the Housea household on 17 October 2010. Mr and Mrs Housea had argued in relation to Mr Housea's desire to move the family to the United States of America to live. The narrative refers to Mrs Housea's statement that Mr Housea had a controlling demeanour; he had thrown milk at Mrs Housea and thrown her to the ground in the presence of the children. Mr Housea had then sat on Mrs Housea's chest, put his hands around her neck and applied pressure saying "I'm in control, I'm going to hold you down until you go a bit more red." Later Mr Housea had said "Next time, I will kill you. If you try to call the Police or divorce me, I will kill you."

  1. On 22nd October 2010, the Police had provided assistance to Mrs Housea and the 2 children to move out of the home while Mr Housea was out of the house.

  1. The entry notes that Mr Housea was later arrested and interviewed by the Police. He denied trying to choke his wife or threatening to kill her. He did tell police that he had wanted to control Mrs Housea's behaviour.

  1. As a result of these events, an Apprehended violence Order was made against Mr Housea in relation to Mrs Housea. He was charged with assault and intimidation. The 2 matters were dealt with under mental health provisions when they came to the court and Mr Housea was required to consult a psychiatrist.

  1. The COPS events also refer to the Housea children as being at risk.

  1. The AVO was made for one year and expired in December 2011. It was subsequently revoked as a result of Mr Housea's application to Campbelltown Court on 18 January 2013. It is understood that Mrs Housea did not oppose the revocation and that Mr Housea applied for it as he wished to obtain a firearms licence.

Evidence of Sergeant Paul Leaney

  1. Sergeant Leaney's evidence was set out in his written recommendation dated 25 January 2013 in relation to Mr and Mrs Housea's applications for firearms licences and his Statement of Evidence dated 2nd October 2013.

  1. Sergeant Leaney's recommendations set out the background to the events of 22 October 2010 when he assisted Mrs Housea to move out of the family home. He said that when he obtained a statement from Mrs Housea on 22 nd October 2010, Mrs Housea had said in her statement that her husband is a dominating figure in the household, that he controlled her and that she gave in to him when he is upset to stop fights from occurring.

  1. When Mr Housea was arrested and interviewed in relation to the matter Sergeant Leaney said that Mr Housea had admitted that he is a dominating person and that he controls the behaviour of his wife.

  1. Sergeant Leaney had rung Mrs Housea to speak to her on Friday, 11 January 2013 concerning Mr Housea's application to have the AVO revoked. The phone was hung up mid conversation and when Sergeant Leaney rang back he spoke to Mr Housea who informed him that he could not speak to Mrs Housea and that she did not want to speak with him. Sergeant Leaney notes that Mrs Housea had contacted the Firearms Registry on 17 January 2013 requesting an application for a firearms licence to be sent to her. On 18 January 2013 the AVO was revoked. Mr Housea's application was based on his desire to get a firearms licence. Whilst in court Sergeant Leaney notes that both Mr and Mrs Housea admitted that Mr Housea is a dominating man and that he controls the household. Mrs Housea had been vague with certain responses to questions which would cast a negative light upon Mr Housea. Sergeant Leaney concluded that he believed that were Mrs Housea issued with a licence, it is probable that any firearm she obtained would be accessible to Mr Housea. Sergeant Leaney then recommended that if either Mr or Mrs Housea were issued with a firearms licence that strict conditions be put in place to ensure no firearms were permitted to enter the family home, that any firearm used by either of the pair is done under strict supervision and any firearm used is restricted to low calibre rounds at approved firearms ranges only.

  1. Sergeant Leaney's statement of evidence dated 2nd October 2013 deals again with the events of 22 October 2010 when Mrs Housea was assisted to leave the family home. He noted that when he questioned Mr Housea about the events that Mr Housea considered that he was justified in his actions or that Mrs Housea deserved his actions toward her. Sergeant Leaney noted the following comments from Mr Housea:

"I did it because she told me to fuck off... I find that rude. She definitely didn't have any control of the situation... It was completely childish behaviour..." and "I could have held her down there for 10 minutes if I wanted to, but that was not my choice." and "I did it to teach her a listen (sic) in behaviour."

  1. When the AVO was issued it was amended to exclude Mr Housea from the family home on the request of Mrs Housea. The police had assisted to remove Mr Housea from the family home at which time Mrs Housea returned to the house with her children

  1. The application for revocation of the AVO had been signed by Mrs Housea and stated :

  • I no longer have any fears for my safety; and
  • My husband has applied for a firearms licence.

Other evidence relied on by the Commissioner.

  1. The Respondent's documents also contained Mrs Housea's police statement dated 22nd October 2010 relating to the events of 17 October 2010 in the Housea's home. In that statement Mrs Housea sets out the events in the home from the assault on 17 October to Mrs Housea's leaving the home on 22nd October 2010. Particular matters referred to by Mrs Housea in that statement are:

  • Mr Housea's desire to change the family name in July 2010 which Mrs Housea did not agree to. However "Kerry became violent, so I 'went along with it'";
  • "I have been watching his moods and avoiding any fighting. Kerry becomes violent and aggressive when he doesn't get his own way."
  • "I was going along with it because that it (sic) what I have been told to do by my in-laws and the Domestic Violence phone line.
  • "he was walking with a controlling demeanour."
  • Kerry raised his voice and he was speaking to me in a controlling tone."
  • "I was trying to avoid an argument..."
  • I didn't say anything to Kerry"
  • "I'm in control, I'm going to hold you down until you go a bit more red."
  • "Next time, I will kill you. If you try to call the Police or divorce me, I will kill you."
  • I was scared that Kerry was going to hurt me and that if I called the Police, that he would kill me."
  • "I am scared of Kerry and I know that he will hurt me. I feel scared that he will carry out his threat to kill me. I want Police to apply for an AVO to protect me."

Summonsed Medical Records

  1. The Respondent had summonsed medical records in relation to Mr Housea from Prince of Wales Hospital, St Vincents Hospital, Mr Housea's general practitioner Dr Savoulis and psychiatrist Dr Anthony McCarron. Documents produced as a result of these summonses were annexed to the Respondent's Outline of Submissions filed and served on 3rd October 2013.

  1. It is important to note that Mr Housea for Mrs Housea, objected to reliance on a discharge summary from Prince of Wales Psychiatric Unit relating to an admission of Kerry Chouseas from 18 March to 20 April 1999. The discharge summary noted a self-presentation by Kerry Chouseas with suicidal ideation. Mr Housea denied that this document related to him. The Tribunal also understood that Mr Housea denied that medical notes produced by St Vincents Hospital relating to an admission of Kerry Chouseas with suicidal ideation on 21st May 2000 related to him.

Reports of Dr McCarron

  1. The Respondent referred to the reports of Dr McCarron, psychiatrist, produced under summons. Mr Housea indicated that he did not wish to cross examine Dr McCarron on Mrs Housea's behalf.

  1. The reports indicate that Mr Housea had commenced consulting Dr McCarron after he was directed to do so by Campbelltown Court following the hearings of the assault matters on 17 October 2010.

  1. It is relevant to note the following observations in Dr McCarron's reports:

  • "no obvious evidence currently of psychiatric disorder"(report to Dr Savoulis 11/02/11)
  • "he had limited...insight ....into the nature of the assault on his wife...he tended to refer to the relationship with his wife as like that of a professor with pupil" (report to Dr Savoulis 11/02/11)
  • "...did not really have much insight into his recent behaviour abnormality. He is supposed to be on Seroquel ...and Epilim but he has not been taking Seroquel lately..."" and "His wife seemed satisfied with his progress although she was rather silent perhaps intimidated" ( report to Dr Savoulis 11/04/11)
  • "...his thought pattern features some disorganisation and tangential thinking with an underlying paranoid pattern. He is not taking the Seroquel I prescribed....He is taking ...Epilim...but only 200mgm bd whereas he should be on at least 800mgm per day.) (to Dr Savoulis 23/09/11)
  • "...continues to function quite satisfactorily with no evidence of psychotic symptoms...." And "return of his gun licence...would be supported only for storage at the gun club...."(report to Dr Savoulis 25/05/12)
  • "...she (Mrs Housea) supports his history and his efforts to regain his pistol licence." and "I do not feel he constitutes a risk to public safety or himself in his current state and I would support the return of a Category H pistol licence where the firearm is used for target sport and is retained in safe situation at a Gun Club only...." (To whom it may concern 27/10/12); and
  • " (with) his obsessive application for a restoration of his pistol licence this thought disorder has become somewhat more evident." and "I have repeatedly questioned his wife as to (the alleged tendency of Mr Housea to control his wife) and she always responds in the negative however I would not completely rule this element out." (Report to Dr Huing Li 24/06/13).

Evidence and Submissions of Applicant

  1. Mrs Housea adopted her letter to the internal review committee undated and received in the Firearms Registry on 8 May 2013 as well as the submissions made by Mr Housea dated 23rd of July 2013 on both his and Mrs Housea's behalf.

  1. Mrs Housea said that her application was for a licence to participate in club activities, under supervision, using the club's own firearms. She had successfully completed the safety form requirements and could show an acceptable level of firearms control. She rejected the opinions of Sergeant Paul Leaney expressed in his written recommendation of 25 January 2013 which underpinned his view that any firearms applications by Mr or Mrs Housea should not be granted. She said she was not a victim of violence.

  1. Mrs Housea submitted that the fact that the court had revoked the AVO made in December 2010 against her husband on 18 January 2013 proved that she is not a victim of violence and that she does not live in violent circumstances. She referred to a disagreement taking place between herself and her husband in relation to his desire to move to United States of America. She said he was now more settled with the birth of their daughter and the counselling of his psychiatrist Dr McCarron. She was aware that any unsafe activity shown at the firing range would be reported to the authorities by an official of the club. Under questioning from Mr Housea she said that it was not correct that Mr Housea tried to control her in relation to her application. She agreed that she had complete control over the application and that success in her application did not necessarily mean that she would get a gun, but that she would be able to fire a gun.

  1. Under cross-examination from the Respondent she agreed that she had never previously made an application for a firearms licence prior to the current one. When asked about the events of 17 October 2010 and her subsequent statement to the police on 22 October 2010 she said that she had only wished to have an interim apprehended violence order. She also said that the statement she had made to the police at the time was true.

  1. Mrs Housea said that she did not think it was fair that she be judged in this matter and that she would be in full control of any firearms were she to obtain a licence. She also said she did not intend to bring firearms into the home - rather she would be supervised at a range. She said that she had not done anything wrong and it was unfair to assume that she would be controlled by her husband.

  1. Mrs Housea did not elaborate on how she might be conditionally licensed to deal with the concerns set out by the Respondent.

Mr Housea's firearms licence history

  1. The Tribunal is not dealing with a firearms application from Mr Housea. However it is relevant to note that Mr Housea has held a firearms licence in the past. This had been revoked by the Respondent in June 2009. He had been refused a firearms licence in March 2005 and in November 2010. Dr McCarron refers in respect of Mr Housea to "his obsessive application for a restoration of his pistol licence."

Respondent's Submissions

  1. The Respondent submitted that the decision to refuse a licence to Mrs Housea was justified on the following grounds:

  • Mrs Housea may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances as set out in section 11 of the Act;
  • it is not in the public interest for Mrs Housea to hold the licence as set out in section 11 (7) of the Act; and
  • a firearms licence is a privilege and not a right - see Keane vs Commissioner of Police, New South Wales Police [2008] NSW ADT 68.

  1. The refusal of the licence to Mrs Housea was justified because of Mr Housea's past aggressive and violent conduct towards his wife, and the risk of firearms in this environment. It could not be said that there is virtually no risk to public safety if Mrs Housea is given the privilege of a firearms licence.

  1. Mr Housea had been diagnosed with schizophrenia since 1999. Mr Housea's psychiatrist Dr McCarron had written on 27 October 2012

"I would support the return of the category H pistol licence where the firearm is used for target sport and is retained in safe situation at a gun club only and would suggest at least annual psychiatric review to substantiate this support."

  1. In June 2013 Dr McCarron had said that Mr Housea's current medication regime was 'minimal' and that he required observation to identify any emerging psychotic symptoms. Dr McCarron's report suggests he is concerned about a deterioration in Mr Housea's condition given his "obsessive application for the restoration of his pistol licence."

  1. Mr Housea has a history of aggression and violence - in 2006 and 2007 there are reports of such behaviour towards family members. In 2010 Mr Housea was charged with domestic violence offences against Mrs Housea and an apprehended violence order was issued against him.

  1. Mr Housea had been dishonest in relation to firearms matters. He was prosecuted in October 2013 for making a false declaration on an application in relation to firearms.

  1. Both the police and Dr McCarron have concerns that Mr Housea influences Mrs Housea. In his report of June 2013 Dr McCarron said

"I have repeatedly questioned his wife as to whether this is so and she always responds in the negative however I would not completely rule this element out."

  1. The Respondent submitted that it is not safe to give Mrs Housea access to firearms given Mr Housea's mental illness, influence, dishonesty and past history of aggression.

  1. The Respondent referred to the fact that there had been a single written response to the Commissioner's Internal Review decision written by Mr Housea which was adopted by Mrs Housea. This was indicative of the control Mr Housea was exercising in the matter.

Respondent's submissions in relation to the law

  1. The Respondent noted that the legislation in relation to the licensing for firearms was a strict legislation which viewed a firearms licence as a privilege and not a right. The licensing regime under the Act is strict and ought to be interpreted in that way - see England vs Commissioner of Police New South Wales Police [2006] NSWADT 95 at 39; Osborne vs Commissioner of Police New South Wales Police Service (GD) [2000] NSW ADTAP 10 at 45.

  1. The Respondent did not question Mrs Housea's fitness and propriety to hold a firearms licence. However, in relation to whether an applicant will exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances, the Respondent referred the Tribunal to the findings in Tolley vs Commissioner of Police [2006] NSWADT 149 at 31. The Tribunal found in this matter that there was no basis to differentiating between the conduct of the Applicant themselves and the conduct of another which might impact on public safety in the context of a firearms licence.

  1. In relation to the issue of 'public interest' the Commissioner referred the Tribunal to Commissioner of Police vs Toleafoa [1999] NSW ADTAP 9 at 25 in which the Appeal Panel said that the 'public interest' consideration gave the Commissioner a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

  1. The test in relation to 'public interest' set out in Ward vs Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 was whether:

"based on all the evidence, it would have confidence that (the applicant) 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."

  1. The Respondent submitted that the Commissioner has reasonable cause to believe that Mrs Housea may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances. Further it was not in the public interest that she should be given a firearms licence.

  1. Mrs Housea's living arrangement with Mr Housea was of great concern to the Commissioner as there is risk that Mr Housea would also obtain access to firearms were Mrs Housea to have such access. Sergeant Leaney had set out in his statement that Mrs Housea "alleges that Kerry Housea is a dominating figure in the household and he controls her. Nicoletta states that she gives into Kerry when he is upset to stop the fights from occurring."

  1. Sergeant Leaney also said that "Kerry admitted that he is a dominating person and that he controls the behaviour of his wife." Sergeant Leaney notes that similar admissions were made in court relating to the revocation of the AVO. Dr McCarron had expressed similar concerns about Mr Housea's tendency to control - although he noted that this was denied by Mrs Housea.

  1. The Respondent identified the risk that if Mrs Housea were granted a licence that Mr Housea would seek to unlawfully access and use firearms and that Mrs Housea may not be able to refuse Mr Housea's request to use firearms and therefore place the public at risk of their safety.

  1. The Respondent pointed to a statement provided by Mrs Housea on 22 October 2010 in which she says

  • "Kerry became violent so I went along with it."
  • "Kerry becomes violent and aggressive when he doesn't get his own way."
  • "I was going along with that because that is what I've been told to do by my in-laws and the domestic violence phone line."

  1. Accordingly, Mrs Housea's domestic circumstances were such that it could not be "guaranteed" that she would personally exercise continuous and responsible control over the firearms at their property.

Consideration of Law

  1. The role of the Tribunal in hearing this application is to determine whether the Commissioner's decision is the correct and preferable decision having regard to the relevant facts and the applicable law (s.63 of the Administrative Decisions Tribunal Act 1997).

  1. These are not adversarial proceedings where Mrs Housea carries an onus of proof. It is a review of the merits of the original decision of the Commissioner to refuse Mrs Housea's application for a firearms licence. The Tribunal's task is to make its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (see McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.

  1. The Commissioner has a discretionary power to issue or refuse to issue a firearms licence.

  1. Section 11(3) (a) requires that the Commissioner must not issue a firearm licence 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." The Tribunal understands that the Commissioner is satisfied that Mrs Housea is fit and proper and that she can be trusted to have possession of firearms herself without danger. The Tribunal is also satisfied of this.

  1. Section 11 (4)(a) requires that the Commissioner must not issue a licence 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 way of living or domestic circumstances"

  1. This means that first and foremost the Commissioner must have "reasonable cause to believe" that Mrs Housea may not personally exercise continuous and responsible control" over her firearms "because of her way of living or domestic circumstances". The Commissioner argues that he was so satisfied and contends that the Tribunal should also be.

Reasonable cause to believe

  1. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs 41-43. There the Tribunal determined that 'reasonable cause to believe' :

41"(is) not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief." and
43 "In my opinion, the abovementioned principle .....equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 11(4)(a) of the Act."

Findings of Fact

  1. Before making a finding about whether there is "reasonable cause to believe", findings must be made about Mrs Housea's domestic circumstances.

  1. While Dr McCarron was not called to give evidence, the Tribunal accepts the statements made in his reports put before the Tribunal about Mr Housea's mental health. The Tribunal notes Dr McCarron's assertions that Mr Housea was not taking appropriate types or sufficient amounts of medication.

There are consistent references in the materials before the Tribunal to Mr Housea's desire and actions to control Mrs Housea. These observations are made by Dr McCarron, Mrs Housea, Sergeant Leaney and Mr Housea himself as set out above.

  1. Mrs Housea's evidence and quiet demeanour did not raise concerns about her fitness and propriety to have a firearms licence.

  1. The Tribunal's findings of fact are that Mr and Mrs Housea are married and live together with their children. Mr Housea has a documented history of mental illness and is likely to be under medicated for this in Dr McCarron's opinion. This leads to a risk of relapse of his mental illness. Mr Housea has made a number of attempts to regain his firearms licence - and has displayed an attitude to this that Dr McCarron describes as 'obsessive'. There is a history of Mr Housea having been violent towards Mrs Housea in the home. Mr Housea has a tendency to seek to control Mrs Housea as observed by Sergeant Leaney, Mrs Housea and Mr Housea himself. This tendency to try to control Mrs Housea was denied by Mrs Housea in the witness box - but the Tribunal finds this at odds with Mrs Housea's previous statements and the observations of others.

Decision

  1. Mrs Housea has not previously been the holder of a firearms licence. There is no evidence before the Tribunal that use and possession of firearms has been an interest for her. The Application for Review of the Commissioner's decision to refuse Mrs Housea a firearms licence appears to have been driven by Mr Housea. It is likely that the actions of Mrs Housea in applying for a licence for firearms, is primarily for the purpose of pleasing Mr Housea. In these circumstances, particularly where Mrs Housea has been supportive of her husband and has not independently developed any experience in using firearms, it is difficult to imagine that there will not be incidents where by necessity or even inadvertently Mrs Housea would allow Mr Housea to use and possess the firearm. As Mr Housea is not the holder of a licence, such incidents would mean that Mrs Housea will have failed to exercise continuous control over her firearm.

  1. From all the material before the Tribunal I find that Mrs Housea's domestic situation is such that she is reluctant to anger her husband by disagreeing with him. I cannot be satisfied that Mrs Housea has the capacity to prevent her husband from unlawfully accessing firearms in their house, and in my view the possibility of Mr Housea having access to firearms is an unacceptably high risk - given his history of violence towards Mrs Housea and insufficient treatment for his mental illness.

  1. When objectively assessed for the reasons set out above, there is reasonable cause to believe that Mrs Housea may not personally exercise continuous and responsible control over her firearms because of her domestic circumstances.

  1. The principles and objectives of the Act are set out in s.3. The principle in s3 (1) (a) clearly states that the primary objective is public safety and that possession and use of a firearm is a privilege. The principle in s.3 (1) (b) of the Act relates to improving public safety by imposing strict controls on the possession and use of firearms.

  1. In the Tribunal's view, having regard to these principles, Parliament regarded any unlawful use and possession of a firearm to pose a risk to the public. This risk would be present were Mrs Housea to be granted a firearms licence in her current domestic circumstances.

  1. Accordingly, the Tribunal finds that Mrs Housea should be refused an application that would allow her to possess firearms.

  1. The Tribunal also considered whether Mrs Housea should be granted a conditional licence on the basis of her submissions. However there was insufficient information before the Tribunal about how this might work for the Tribunal to do so.

  1. Having made this finding, it is not necessary to determine whether the Commissioner is correct in submitting that the issue of a firearms licence would be contrary to the public interest under section 11(7) of the Act.

  1. The Tribunal affirms the decision under review to refuse Mrs Housea a firearms licence.

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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: 01 May 2014

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