Howison v Commissioner of Police

[2021] NSWCATAD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Howison v Commissioner of Police [2021] NSWCATAD 157

Hearing dates:

2 March 2021, 31 May 2021

Date of orders:

7 June 2021

Decision date:

07 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof GD Walker, Senior Member

Decision:

1.   Decision under review affirmed.

2. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings to be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material in confidential exhibit CR3.

3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR2 is prohibited.

4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

5. 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 preliminary proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.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 – licence refusal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

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

Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240;

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] NSWADTAP 16;

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

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

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89;

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

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206;

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

Sterjovski v Director-General Department of Transport [2000] NSWADT 10;

Tukel v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 60;

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

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

Category:

Principal judgment

Parties:

Craig A Howison (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Peter Payne Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/00327185

Publication restriction:

See above.

Reasons for decision

1. The applicant Mr Craig Howison applied to this tribunal on 17 November 2020 for review of a decision by the respondent Commissioner on 2 January 2020 to refuse his application for a category AB firearms licence on the ground that he had a record of offences indicating the propensity to violence, including that on 10 June 2009 at Cobar Local Court he had been convicted of assault occasioning actual bodily harm and required to enter into a s 9 bond for two years. The Commissioner took the view that it was not in the public interest for the licence to issue to the applicant.

2. According to the police fact sheet relating to the assault, on 15 May 2009 the applicant became involved in an argument with a security guard at a Cobar hotel in which he struck a beer glass on the left side of the guard’s head. Two other hotel security staff hotel security then assisted the security guard and bundled the applicant out of the hotel. He was arrested and taken to Cobar police station, where he declined to be interviewed. He appeared to be well affected by alcohol. The security guard suffered a small cut to his left ear and another to his right third finger.

3. The Commissioner’s decision was affirmed following an internal review on 20 October 2020. The reviewing delegate explained that while it was acknowledged that his criminal history was dated, it was not possible to be satisfied that the issue of the licence to him was without risk. The review decision also relied on the applicant’s relationship with his brother, Michael Howison, who has a serious criminal record and in 2019 was bailed to reside with the applicant. The decision also placed weight on the fact that in his licence application lodged on 26 June 2019 he supplied false and misleading information.

4. The applicant is aged 48 and had not previously held a firearms licence (though he had unsuccessfully applied for one) when he made an online application through Service New South Wales (exhibit R1, pp 29 – 36) on 26 June 2019. The Commissioner’s decision to refuse a licence was affirmed by an internal review on 20 October 2020 (exhibit R1, pp 46 – 50).

Applicable legislation

5. The Commissioner’s case in this matter relies on public interest grounds. Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.

6. The substantive issue in this application is thus whether it would be contrary to the public interest for a category AB firearms licence to be issued to the applicant.

Preliminary motion

7. On the second day of the hearing, the respondent as previously foreshadowed made a preliminary application for confidentiality orders under s 64 of the Civil and Administrative Tribunal Act (CAT Act) for certain new evidence. The applicant opposed the motion and also Mr Zoppo’s request for a confidential hearing of his submissions relating to it.

8. Mr Payne on behalf of the applicant argued that the respondent’s opposition to the substantive application had raised further issues – first his brother’s criminal history, then the issue became a false and misleading statement in the application. Whenever the applicant answered one issue, the respondent raised another. Now the respondent sought to tender confidential information, but the applicant had answered every issue raised so far. The respondent continues to “fish” for more and more reasons for opposing the application, which is not fair and reasonable because he cannot make submissions on an issue that is confidential.

9. All he could say would be that the confidential information was not relevant because it had not been raised to date. Fairness and the principles of administrative law were not being observed. He relied on the guidelines for granting confidentiality to documents set out in Tukel v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 60.

10. Mr Zoppo replied that the tribunal was required to make a decision on the material before it. The question of false and misleading statements had been raised earlier in the proceedings and the applicant had notice of the point. The respondent was not seeking to rely on anything that was not in the file. New evidence can and should be provided as it becomes available.

11. He appreciated Mr Payne’s concern about the application of s 64 of the CAT Act, but releasing the information in an open hearing would forfeit the confidentiality protecting it. The material was relevant and should be received in a confidential hearing.

12. After the submissions of both sides had been heard, orders as sought by the respondent were made under ss 49 and 64 as set out below. Those sections create exceptions to the general rules under which hearings are normally held in public, documents relied upon are available to all parties and reasons for decision are published without restriction. Such exceptions require the existence of special circumstances: Tukel, [35] – [41].

13. [NOT FOR PUBLICATION]

14. In my view publication of the material could prejudice current and future investigations of criminal activities and could identify confidential sources of information to the police. It could place identifiable persons at some risk of harm. It was therefore appropriate to make the orders as asked.

The evidence

15. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and other documentary material, including confidential exhibit CR3. The applicant gave oral evidence.

Craig Howison

16. In oral evidence by telephone at the hearing, the applicant adopted his affidavit sworn on 8 December 2020 (exhibit A1) in which he stated that he is the manager of a sheep station at Louth, New South Wales, a property of 50,000 acres (20,234 ha) that runs some 10,000 sheep and an unknown number of goats. There are wild dogs on the property and one of his duties as manager is stock management and pest control.

17. An unfortunate part of stock management was having to put down sick and injured stock. The property is isolated and there is no possibility of having a veterinarian travel to the property. As he does not have a firearms licence, he must do this by cutting the throats of the animals, as was especially the case during the recent record drought. Stock that were bogged in tanks had to be left to die because he could not access them safely. It would be much more humane to perform that duty with a firearm.

18. He grew up in Cobar, New South Wales, a town that he described as having a drinking culture, and when he was younger he drank to excess like many young men in the town. Every time he got into trouble with the police, he had been drinking. It took him until he was older to make that connexion. His last offence and conviction took place in 2009. He had again been drinking when the offence occurred. He received a s 9 bond for two years, and a fine. The court took into consideration the low objective seriousness of the offence and his character when sentencing him to a bond.

19. After he was convicted of the offence in 2009, he took a long hard look at his offending and changed his drinking pattern. He stopped drinking spirits and limited himself to beer, and drank less frequently. In 2015 he stopped drinking alcohol completely, having decided that it had no place in his life. He stopped drinking with no professional help. He had never used illicit substances.

20. Michael Howison is his brother, but they had led very separate lives. Because of Michael’s offending, the Howison name has a stigma attached to it in Cobar. His brother Scott and sister Lana have both left Cobar because they believed they would have better opportunities for employment in other towns. The only time Michael resided with him was when he was granted bail by Bourke Local Court in 2019 on condition that he reside at the applicant’s address. That was done without the applicant’s prior knowledge. When Michael arrived, the applicant told him he needed to find somewhere else to live quickly. The police visited him every second day, and after six weeks the applicant returned home to find 12 police officers searching his house. He was informed that because his partner Kim Griffiths had a firearms licence and firearms on the premises, either the firearms had to go or Michael had to leave. He decided that Michael would leave.

21. He no longer has any contact with Michael. He became aware that Michael is facing further charges only because of reports in the local newspaper. He believes it is unfair that Michael is used by the police as a reason to refuse him a firearms licence.

22. His father was a professional kangaroo shooter and he grew up around firearms. His father would take the applicant out shooting with him when he was younger. His duties for his father included stripping and cleaning his firearms, reloading rounds, ensuring the firearms were stored safely and reloading firearms while his father was shooting. He has also completed two courses in firearms safety. He is an authorized user of 1080, a poison used to bait wild dogs. He believes that his being authorized to use that poison shows that he is a responsible person.

23. When his father died, he left the applicant 9 firearms. Because he was unable to apply for a licence at that time, his partner Kim applied and was granted a licence in 2012. His character was not raised as an issue in relation to her application.

24. As regards his personal history, he attended Cobar High School to year 10 and left to commence employment as a roustabout. His employment has been in manual and semi-skilled positions. He is not familiar with legal or formal documentation. When he was completing his last application for a firearms licence, he ticked the box to say he had not been refused a licence, but that was a mistake on his part and not a deliberate attempt to mislead. He received a letter from the Firearms Registry stating that he could reapply for a licence in June 2019.

25. His criminal record shows that 1994 was not a good year for him. He was still drinking, but after that year he started to reduce his drinking and settle down. His partner Kim, whom he met in 1993, had five children and he helped her to raise three of them. They now have 14 grandchildren who return to Cobar to visit them. To 2009 he had been working underground in the local Endeavour mine, performing mine maintenance. In 2009 he started caring for his father, who was suffering from cancer, and had a position with the Cobar Local Aboriginal Land Council painting houses when required. He continued in that position until 2013.

26. After his father died in 2011, he spent the next 12 to 18 months renovating his house, doing most of the labour himself. He offered to rent the house, but his siblings wanted to sell it, so in 2016 he obtained a mortgage and purchased the house. That is his current family home. On 1 April 2014, he obtained his current position as a station manager. He comes to town every few weeks for a couple of days.

27. He has turned his life around since he was in his 20s and early 30s. He has a family, is a homeowner, holds stable employment and no longer drinks. He is a responsible member of the community and poses no risk if he is granted a firearms licence.

28. In oral evidence at the hearing, he explained that he had made two applications for a firearms licence, one in November 2016. He had been advised by Robert Thompson, the supervisor at the firing range. He had lodged the application and completed the safety course. He answered the question on the application about whether he had been convicted in the last 10 years in the negative, as he thought he had done 10 years. He later received a letter stating that he was subject to mandatory refusal but could reapply in 2019 after the expiration of 10 years.

29. He then applied a second time, notifying Robert Thompson. He filled in the form and completed the course. Robert Thompson had explained that if he answered “yes” to any of the questions on the form, he could not lodge it. He did not realize that he had filled it out incorrectly. Thompson had said that if he ticked as a “yes” box, the application could not go further. The notice he received from the firearms registry said only that the problem was that the 10 year period had not expired. He had ticked the “no” box in response to question A because he had thought he would not be eligible unless he ticked No to all questions. He had received no other advice. Robert Thompson runs the safety course and put the applicant through it.

30. His second P650 form in 2019 showed that Robert Thompson is an instructor and gives his certification number. The 2016 declaration was false in relation to the expiration of 10 years, because he had thought it was true. He had not known it to be false at the time. Robert Thompson had told him he could not tick Yes because otherwise the application would not be able to proceed. It was his own mistake. As the letter had only mentioned the requirement for the expiration of 10 years, he had thought that was all he had to do. His false answers had only become an issue recently, and he had thought it was his criminal record that was the problem, but then his brother’s record was brought up.

31. He did not read well and had no intention to deceive. To the best of his ability, he had applied correctly.

32. In cross-examination he said he had left school in year 10, and could not read or write well. He had received his Year 10 certificate. At the sheep property he works at as manager he cares for about 5000 sheep on his own, except at shearing time, when the boss comes over and decides if he should sell any stock. When he had to put sheep down during the drought, he had to cut their throats because he had no firearms. He had started at the station in 2014. His father had died in September 2011 and left his guns to him. His wife had obtained a licence in 2012 so that his father’s guns could be passed down. She does shoot sometimes.

33. He first applied for a licence in December 2016, and until then had been able to work without firearms. He had been fined on two firearms offences in 1989 when he was 17 because he had a “slug gun” [airgun], which had not previously required a licence. His 1990 offence of possessing a prohibited plant referred to a single seedling he had. The assault occasioning actual bodily harm for which he received the 2-year bond was his last conviction. No supervision had been required. His criminal history as set out in exhibit R1 was correct. Asked about the fact sheet for that offence, he said the security guard was his cousin and as he believed his cousin had stolen some firearms from him, an argument ensued and he was asked to leave the hotel. The guard had called over two other security men who had pushed him to the floor and kicked him. He rose and swung the glass he was holding at the side of the first guard’s head. In his defence he had raised self-defence.

34. In 2016 when he had filled in the form, he had answered No to question (e) because he thought he had done 10 years, having got the dates mixed up. Otherwise he would not have applied. He agreed that he had signed the certification that the information he had provided was correct and agreed that he should have made proper enquiries when completing it. The P650 form he completed in November 2016 was filled in at the Cobar firing range. Robert Thompson had not explained the form, so he just filled it out, with his wife’s help. He had thought he had completed it correctly and did not simply give the answers that would enable him to do the course.

35. The June 2019 P650 form was completed at the Cobar range. He had stated that he had not been refused a licence, though he knew his 2017 application had been rejected as refusal was mandatory. But he was not trying to be dishonest. His “No” answer had been a mistake as Thompson had told him to complete it that way. He did not tell him to lie, but had said that any ‘Yes’ answers would block the application. It was a mistake and he did not know he was not entitled. In 2017 he had not been told he had completed the 2016 form incorrectly, otherwise he would not have filled it in incorrectly.

36. His 2019 application (exhibit R1, p 29) had been typed up by Service New South Wales, using the answers that he provided. It was put to him that he had again answered No to the same question about refusal, even though there had been no-one telling him how to complete the form. He replied that he had not realized his answer about prior refusal was false. It was a mistake and he had thought he had to give the same answer as he had on the P650 form. After he filled in the form he realized he should have obtained advice about completing it.

16. He agreed that he had wrongly ticked No on four occasions, but said that Thompson had said to do it that way. He had not said to give false information, and he had not ticked No in order to mislead. He had been told he could not do the course if he answered any questions with a Yes. He agreed that Thompson’s explanation was simply stating the law. He had made a mistake, but the situation had not been clear to him at the time and he had not realized his answer was false, but now he does. He had not known about false and misleading statements on the forms until recently, but now saw his mistake. He had no intent to mislead on four occasions.

17. His brother no longer lives with him and does not visit. They last spoke 16 or 17 months ago. His brother is currently in jail and knows he is not welcome at the applicant’s house. He had not been notified when Michael had been bailed on condition that he lived with the applicant. He was there for six or seven weeks until the police said he could not stay where there were firearms. They had not committed any offences together and he had never been involved in Michael’s crimes.

18. In re-examination he said he had helped his father, who was a professional kangaroo shooter, when he was a child. He had been around guns all his life and understands the requirements of safety. He has applied for a firearms licence because in his work on the property it is a tool of trade. His wife does not live on the property, but resides in town in Cobar.

Kim Griffiths

40. The applicant also tendered an affidavit by Kim Griffiths dated 14 December 2020 (part exhibit A1) stating that she has been the partner of the applicant Craig Howison for 27 years. He had helped her to raise three of her five children and is a proud grandfather of 14 grandchildren.

41. When she had met Craig he was like many of the Cobar men, drinking regularly, as that was an accepted way of life. She had noticed that when he drank spirits, he was a different person and his drinking often got him into trouble with the law. Over the years he had reduced his drinking, and as he got older he seemed to realize the negative effect of alcohol had on his life and the life of his family.

42. In 2009, Craig’s father, who had been diagnosed with cancer, needed care. She and Craig were happy to step in and help him. That was also the last year Craig got into trouble with the police. She knows Craig was embarrassed that he had been arrested and realized that he needed to change some aspects of his life. One of the things he changed was his drinking habits.

43. Craig initially cut down on his alcohol consumption, but decided five years ago to completely stop drinking. He had made the decision on his own and had followed through with resolution. She knows what Craig was like when he was drinking, and she would know if he was still drinking alcohol by his behaviour.

44. His father died in 2011 and left Craig nine firearms. Craig did not have a licence and had a friend with a licence look after them. In 2012 she had applied for her licence and was granted a licence without any concerns being raised about Craig’s past convictions or his brother Michael. Craig and Michael had always led separate lives and are not close because of the lifestyle Michael has chosen. She had stored firearms in their house since 2012 without any problems. After 2009, Craig had looked after his father until his death, had renovated and purchased a house for their family and found his current employment as a station manager. She was proud of how he had turned his life around. She did not think Craig’s past convictions should count against his obtaining a firearms licence.

45. The applicant also tendered some signed character references (part exhibit A2), which will be referred to below.

Applicant’s submissions

46. The applicant relied on his written submissions dated 14 January 2021 which began by stating that the applicant had never held a firearms licence and made an initial application in 2016. He received a notice of refusal dated 15 February 2017 which referred to the offence of 10 June 2009 and advised that any application before 10 June 2019 would have to be refused on mandatory grounds. The applicant was not aware of any other reason why he could not reapply after 10 June 2019.

47. In his 2019 application, he answered “No” to the question “Have you in NSW or elsewhere: (a) been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?”. He states that this was a genuine mistake on his part. He knew he had been refused in December 2016 and that was discoverable by the police. He was not trying to mislead or be dishonest. He had been undertaking the qualification course and had interpreted what the trainer, Robert Thomson, had told him that he must answer “no” to the question in order to proceed further.

48. The applicant is open about his prior convictions and states that he is now ashamed of his behaviour when he was younger. He admits that much of his offending was associated with drinking to excess and he has taken steps to rehabilitate himself, including abstaining from alcohol and finding long-term employment. He acknowledges that some of his offences were for violence, but states that he is no longer the person who committed those offences. It has been over 10 years since his last conviction.

49. He last had contact with his brother Michael Howison some 15 or 16 months ago. He says that while he acknowledges Michael as his brother, they have not been close as adults and live separate and very different lives. All his brother has done is to make his life difficult, embarrassing their name which people associated with drugs because of Michael’s offending. He had not been consulted about his brother’s being bailed to live at his residence in Cobar and would have refused if he had known, because of Michael’s drug history. The police had told him that as Kim had a firearms licence and firearms on the premises, either Michael would have to leave, or the firearms would have to be removed. He made a decision that Michael would have to leave and has not had contact with Michael since then.

50. The applicant has never been associated with, or charged with, any offences in relation to Michael and recalls that when he spoke to a detective at the time the police searched his house, the detective said to him, “I did not know Mick had a brother”. That indicated that the applicant had not been associated with Michael or his offending, to the knowledge of police. It would be unfair and unreasonable to refuse him a firearms licence on the basis of his brother’s criminal activities.

51. The applicant stopped drinking alcohol completely in 2015. Before that he had significantly cut back on his consumption, being aware that drinking spirits to excess had been involved in all of his offending. He changed to infrequent beer consumption before totally abstaining. He has been with his partner Kim Griffiths for 27 years and helped to raise three of her five children, and is the proud grandfather of 14 grandchildren. He has been in steady employment since leaving school in manual and semi-skilled positions and has been in his current position as station manager at the Louth property since 2014. After his father died in 2011, he spent 12 to 18 months renovating his father’s house and has since purchased it from his siblings.

52. As a rural worker involved in primary production and managing a property, he has a genuine need to control pest animals and is responsible for the welfare of the stock. He usually works alone on an isolated property, returning to Cobar every two weeks. Part of his work includes putting down stock when necessary. It is not practical or cost-effective to use a veterinarian for that work because of distance and the fact that Bourke and Cobar no longer have a permanent veterinarian. During the drought he was forced to cut the throats of up to 30 sheep a day because of the lack of available feed. He said he felt at the time that using a rifle would have been much more humane. A large part of his work involves controlling feral animals and for that purpose he is authorized to use 1080, having a licence to do so until 11 September 2024. Control of wild dogs and other feral animals would be much easier if he were allowed to use a firearm.

53. Having grown up in western New South Wales, he was familiar with firearms and has twice completed the necessary course for obtaining a firearms licence, in November 2016 and June 2019. His father was a professional kangaroo shooter and the applicant assisted him when he was younger. He learned how to strip and clean firearms, and also the safe handling of firearms. He has a genuine need for a firearms licence and is a fit and proper person to hold one. His original application listing recreational hunting and vermin control did not encompass his employment. He has a genuine need for a licence in the course of his employment on the grounds of primary production, vertebrate pest animal control, business and employment, rural occupation and animal welfare. The isolated area in which he works makes it unpractical to use other methods of euthanising animals.

54. He has had no convictions in the past 10 years, is employed and a family man. He has made considerable changes to his life since 2009, including finding long-term employment, abstaining from alcohol and purchasing a house in 2016 for his family. The issuing of a licence would enhance his ability to meet his employer’s expectations and assist him in maintaining employment in an isolated area where employment opportunities are limited.

55. The applicant also relied on some further written submissions dated 15 February 2021 in which he contended that the “virtually no risk” formula enunciated in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [27] was totally satisfied in his case, as much of his offending had been associated with excessive drinking and he had taken steps to rehabilitate himself, including by abstaining from alcohol and finding long-term employment. The penalties attached to his charges would appear to indicate that his offending was at the lower end of the scale of seriousness. He was not a risk to the community or public safety.

56. He had not been consulted about his brother Michael being bailed to live at his address and would not have agreed to it if he had known. After six or seven weeks he asked his brother to leave and has not had any contact with him for some 16 or 17 months.

57. At the time the P650 form was completed on 28 November 2016, he was not sure exactly how long it had been since his last conviction, but believed it had been sufficiently long ago to allow him to apply. His literacy and comprehension skills are limited and should be taken into account when considering how he completed the form. He made a genuine error and did not intend to mislead police. He was always aware that he had convictions and that the police were able to check them.

58. In his licence application dated 13 December 2016 he had answered “No” to question H(a), dealing with prior refusal of a licence. He had been notified by letter on 15 February 2017 that the reason for refusal of his prior licence application had been that the 10 years following his last conviction had not expired. There had been no mention of false and misleading information being provided in either the P650 form or the application itself. He had heard from the mandatory refusal that the time since his last conviction was the only reason he had been refused a licence. In any case it could be argued that his application per se was not refused, as he did not qualify to make an application.

59. In his 2019 P650 application, he had answered “No” to the question about prior licence refusal. He states that this was a genuine mistake on his part. He knew he had been refused in December 2016 and that was discoverable by the police. He was not trying to mislead or be dishonest. When he attempted to undertake the qualification course, Robert Thomson had told him he must answer “no” to the question to proceed any further.

60. He had answered “No” to the licence refusal question in the current licence application lodged on 26 June 2019. He says that was a genuine mistake on his part. He knew he had been refused in December 2016 and that was discoverable by the police. He was not trying to mislead or be dishonest. His literacy and comprehension difficulties again impacted on his ability to fill out the form correctly.

61. The Commissioner’s concerns about his relationship with his brother Michael were misplaced, as Michael had been bailed to his address without his consent. He has never been charged with or associated with any of Michael’s offending, which has occurred over a long period. It is unfair and unreasonable to refuse him a licence on the basis of his brother’s criminal activities. Even members of Ivan Milat’s family have current firearms licences.

62. As regards providing false and misleading information, no consideration has been made for his literacy and comprehension issues and the fact that he does not regularly complete forms. The trainer had not told him that any “yes” answer on the P650 form would mean that the matter would have to be referred to the firearms registry. As a layperson he did not have access to his criminal history and had to rely on memory.

63. The isolated area in which he works makes it extremely difficult and almost impracticable to use other methods of euthanising animals. He regards a firearm in those circumstances as a tool of trade. He has had no convictions in the past 10 years, is employed and a family man. He has made considerable changes to his life since 2009. His partner has held a firearms licence and stored firearms in their house for nine years and no concerns have been raised by police about his proximity to those firearms. He has no close association with his brother Michael and should not be refused a licence because of his brother’s criminal record.

64. Mr Payne also filed some further written submissions dated 15 February 2021 (part exhibit A2), the contents of which are referred to below.

65. At the hearing Mr Payne on behalf of the applicant relied on those submissions and drew attention to the references attached to Kim Griffiths’s affidavit (exhibit A2). The later written submissions had been lodged because the prior written submissions had been prepared before the respondent had raised the issue in relation to providing false and misleading information. Although the issue had been raised only recently, it seemed to be treated as important.

Consideration

66. 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.

67. 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.

68. 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.

69. 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.

70. In this matter the respondent does not contend that the applicant is not a fit and proper person to hold a licence, but submits that it is not in the public interest for him to do so, within the meaning of s 11(7) of the Firearms Act, and that the discretionary power conferred by the provision should be exercised so as to refuse the issue of a licence.

Public interest

71. 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.

72. 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.

73. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

74. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner’s decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” (at [7]).

75. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66].

71. 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].

Criminal convictions

77. The first ground relied on by the respondent on the public interest question is the applicant’s record between 1988 and 2009 of criminal convictions for offences including assaulting police, firearms contraventions and an offence of dishonesty, but principally for offences of violence. The refusal notice dated 2 January 2020 details seven charges for violent offences and two AVOs between 1991 and June 2009, the last being for assault occasioning actual bodily harm, for which he received a s 9 bond for two years. He displayed a particular propensity for violent behaviour after consuming alcohol. Following his 2009 conviction, the Commissioner was required to refuse any application for a firearms licence within a period of 10 years from the conviction, pursuant to s 11(5)(b).

78. In his evidence he pointed out that the 2009 conviction was his last conviction, and the court had not required any supervision. He maintains that he has turned his life around since he was in his 20s and early 30s. He has a family, is a house owner, holds stable employment and no longer drinks. He is a responsible member of the community and poses no risk if he is granted a licence. In the further written submissions filed on 1 March 2021, Mr Payne argued that given the penalties attached to his charges, his offending would appear to be at the lower end of the scale of seriousness. It was also significant that he had never been incarcerated.

79. His partner Ms Kim Griffiths supports that view. She had noticed that when he drank spirits he was a different person, and his drinking often got him into trouble with the law. Over the years he had reduced his drinking, and as he got older he seemed to appreciate the negative effect of alcohol on his life and the life of his family. He initially cut down on alcohol consumption, but decided on his own initiative five years ago to completely stop drinking and had followed through with his resolution. She knows what he was like when he was drinking, and she would know if he was still drinking alcohol by his behaviour.

80. The applicant also relied on a number of supportive character references, which will be outlined below, but which attest to the way he has changed his life and left behind his history of alcohol-fuelled violent and rowdy behaviour. The absence of any charges of offences of violence, or of any adverse police reports of violent behaviour, appears to support that belief. In my view there is no longer any significant risk of his engaging in criminal violence and his record of convictions represents an insufficient ground for licence refusal.

False and misleading information

81. The second ground on which the respondent relies is his supplying of false or misleading information when completing firearms licensing application or declaration forms. The first instance relates to his completion of a P650 form on 28 November 2016 to enable him to undertake a firearms safety training course without being licensed. The form contained the question whether he had been convicted in the last 10 years of an offence involving, inter alia, violence. He ticked the “No” box, thereby failing to disclose that he had been convicted of assault occasioning actual bodily harm in 2009, and also certified that the information was correct.

82. In his further submissions Mr Payne explained that at the time of completing the form the applicant was not sure of exactly how long it had been since his last conviction, but honestly believed it had been sufficiently long ago to allow him to apply. He left school at year 10 with average passes, and since then had been employed in labouring and semi-skilled positions. His literacy and comprehension skills are limited and should be taken into account. He made a genuine error and did not intend to mislead. He was always aware that he had convictions and that the police were able to check them.

83. Next, on 20 December 2016 in an application for a firearms licence, by ticking the “No” box, he failed to disclose his conviction for an offence of violence as required. He also certified that the information in the application was true and correct in every detail.

84. Again, Mr Payne pointed to the applicant’s poor literacy skills and lack of experience in filling out forms. His refusal notification dated 15 February 2017 did not mention any false and misleading information having been provided and it was anomalous that this issue had become a major point of contention.

85. A third instance occurred on 17 June 2019 when he completed a P650 form to undertake a second firearms safety course. In this instance he falsely represented that he had not been refused a firearms licence and, again, certified that the information in the form was true and correct in every detail.

86. His defence was that this was a genuine mistake. He knew he had been refused a licence in December 2016 and that was discoverable by the police. He was not trying to mislead or be dishonest. When he attempted to undertake the licence qualification course, the trader, Mr Thompson, and told him he must answer “No” to the question to proceed any further.

87. Finally, on 26 June 2019, in a second application for a firearms licence, he again did not disclose that he had previously had a licence refused when only two years earlier, on 15 February 2017, his licence application had been rejected. He also certified that the information he supplied on the form was true and correct in every detail.

88. Mr Payne said that the applicant believed that was a genuine mistake. He knew he had been refused in December 2016, and that was discoverable by the police. He was not trying to mislead or be dishonest. His literacy and comprehension difficulties again impacted on his ability to fill out the form correctly.

89. It will be noted that his licence application of 26 June 2019 is the matter in issue in this review application. The false information provided in the P650 form and the application form contravene s 70 of the Firearms Act with respect to false applications under the Act.

90. The applicant did not deny having supplied false or misleading information in completing the forms, but denied any intent to deceive. He said the false statements were the result of honest mistakes, as having no access to official records he was not sure of how long it had been since his conviction. He said that the instructor at Cowra range had told him that his applications could not proceed if he answered “Yes” to any of the questions. Mr Payne also stressed that he left school at year 10 and his literacy skills are mediocre in his type of unskilled and rural work he has had little experience of completing official forms.

91. As the respondent pointed out, it is difficult to see how the applicant could have made honest mistakes when completing official forms on four separate occasions, even making due allowance for what are described as his limited literacy skills and lack of experience with official documents. The questions are quite simple and straightforward, and in his employment as manager of a large grazing property that runs some 10,000 sheep and an unascertained number of goats, he must have been aware of the requirement to complete official forms relating to such matters as stock holdings, eradication of noxious weeds and the use of 1080, a dangerous product for which he apparently has a special permit. Even if he did not have to fill in the forms himself, he may have compiled information that the owner would need in order to prepare such returns. At the very least he would know that the state government’s requirements for information for official purposes need to be taken seriously.

92. It is conceivable that the applicant’s first false statement, concerning his conviction within a period of 10 years, could have been the result of lack of reliable information about the date of the conviction. But the false information that the applicant provided about his refusals could not have been a mistake, as the refusal dated 15 February 2017 (exhibit R1, p 26) was based on the applicant’s having been convicted of a prescribed offence within 10 years. The refusal letter informed the applicant that “Any application made prior to 10 June 2019 must be refused on mandatory grounds”. As the licence application that is the focus of the present proceedings was lodged on 26 June 2019 (exhibit R1, p 29), it was plainly made with the 2017 refusal and the date set out in the refusal in mind.

93. While it is true, as the applicant pointed out, that the respondent could in a particular case make a search of official records and discover the true facts relating to an applicant, licensing systems rely on applicants providing information that is true and correct, and the respondent should be entitled to rely on the truth of the information contained in an application without having to check each detail of every application. As Scahill SM stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [53], “The system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act”. The requirement that such information must be true and correct is made explicit by s 70. The multiple instances of the applicant’s supplying false and misleading information on official forms is a substantial factor supporting licence refusal.

Relationship with Michael Howison

94. The third ground on which the respondent relies as evidence on the public interest issue is the applicant’s relationship with his brother Michael Howison, who for a time shared a residence with the applicant. Michael Howison has a substantial criminal record, including offences of drug supply and possession of prohibited weapons, and is currently serving a sentence of imprisonment. He is the subject of a firearms prohibition order that prohibits him from residing at a location where firearms are normally kept.

95. Between 27 March 2019 and 29 May 2019, Michael Howison was bailed to reside at the applicant’s Cobar residence, and until police undertook a search of the premises and told the applicant that either the firearms had to be removed or Michael had to leave. The applicant’s evidence was that he was not consulted about the bail condition requiring him to live with his brother and would not have agreed to it if he had. That aspect of his evidence is not challenged and can be accepted.

96. He also testified that they had led very separate lives and that they had not committed any offences together, nor was he ever involved in any of Michael’s wrongdoing. He said he no longer has any contact with Michael and became aware that the latter was facing further charges only because of reports in the local newspaper. He had not spoken to Michael for about 15 or 16 months (how much of that period is accounted for by Michael’s incarceration is not clear). Ms Griffiths’s evidence was to a similar effect. She testified that Craig and Michael had always led separate lives and are not close because of the lifestyle Michael has chosen.

97. [NOT FOR PUBLICATION]

98. [NOT FOR PUBLICATION]

99. [NOT FOR PUBLICATION

100. [NOT FOR PUBLICATION]

101. [NOT FOR PUBLICATION]

102. [NOT FOR PUBLICATION]

The references

103. The applicant tendered a number of character references (part exhibit A2), not all of them dated, but apparently recent. Mr Greg Fraser writes that he has known the applicant for over 40 years in a personal and professional capacity. During that time they had worked together doing all aspects of farm work, which sometimes involves Mr Fraser in having to use a firearm. He had always found the applicant to be honest and reliable and safety conscious around firearms. Mr Jeffrey Hunter has known the applicant for some 30 years and has employed him as an offsider while kangaroo and rabbit shooting. He had always found Craig to be an honest and reliable person of good character and mindful of safety around firearms. The applicant’s employer, Mr Peter Lhuede of Minley Station has employed the applicant for about 6 years, during which time he has undertaken stock work, mustering sheep and general caretaking duties.

104. Ms Kylie Thompson has known the applicant for over 40 years and from the beginning of their friendship had found him to be truthful, fair interpreted, reliable and caring. As her family has grown, he has become and remains a solid influence in her life and the lives of her children. Over the years she has seen him age and mature into the man he is today. While he is not without fault he has always remained strong in his convictions and maintained a positive attitude. It is important for him to hold a gun licence. It would be beneficial in his work life as a property caretaker.

105. He knows the importance of gun safety and has the knowledge to handle them with the care and respect required. She is aware that his brother Michael has done nothing to help the family name or reputation. He has never condoned or made excuses for his brother’s behaviour and they are two very different men. She strongly believes that he would pose no threat to the community and would be a responsible gun licence holder.

Conclusion

106. For the reasons given above, I do not consider that his former criminal history necessarily leads to an adverse finding on the public interest issue. He has had no conviction or charge since 2009 and the evidence is that he has changed his style of life by giving up alcoholic beverages because of the tendencies he developed when under the influence.

107. As the manager of a large sheep station in an isolated area of the state, he has the best possible reason for possessing long arms. His referees know him as very safety conscious in the handling and storage of firearms. His record of providing false and misleading information on four separate occasions, however, including in the application that is the subject of this review, without any adequate explanation except for the first instance, cannot be overlooked. The licensing system cannot operate if the respondent cannot rely on the accuracy of the information supplied to it. On all the evidence, including the confidential evidence, it must be concluded that it would not at present be in the public interest for a licence to be issued to the applicant, and I so find. The decision under review must be affirmed.

Orders

1. Decision under review affirmed.

2. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings to be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material in confidential exhibit CR3.

3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR2 is prohibited.

4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

5. 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 preliminary proceedings, including confidential exhibit CR3 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: 07 June 2021