Humphrys v Commissioner of Police, NSW Police

[2009] NSWADT 58

CITATION:	Humphrys v Commissioner of Police, NSW Police [2009] NSWADT 58
DIVISION:	General Division
PARTIES:	APPLICANT Bruce Richard Humphrys RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	083140
HEARING DATES:	18 March 2009
SUBMISSIONS CLOSED:	17 October 2008
DATE OF DECISION:	18 March 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - issue of licence or permit
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Commissioner of Police v Mercer (GD) [2005] NSWADTAP 55 Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police, NSW Police [2000] NSWADT 28
REPRESENTATION:	APPLICANT In person RESPONDENT R Saunders, paralegal
ORDERS:	The decision to refuse to grant the applicant a firearms licence is affirmed.

Background

1 The applicant has held firearms without incident for many years. He has been authorised to possess and use firearms in NSW since October 1996. There is no suggestion that he has ever misused a firearm. In October 2006 he was charged with Assault Occasioning Actual Bodily Harm and his Category AB firearms licence was suspended as a result of the allegations against him. The charge was dismissed at Grafton Local Court in March 2007.

2 In October 2007 the applicant reapplied for a firearms licence under the Firearms Act 1996 (“the Act”). That application was refused. The applicant sought an internal review of that refusal. The internal review affirmed the original determination to refuse the applicant a licence.

3 The applicant is a resident of the Sunset Caravan Park in Grafton (“the Caravan Park”). In determining the application the Commissioner’s delegate took into account a petition (“the petition”) that purports to have been signed by 27 residents of the Caravan Park. The petition stated in general terms that the signatories were concerned for their safety and the safety of others if the applicant were to be allowed to hold a firearms licence.

The internal review

4 The statement of reasons provided to the applicant in regard to the internal review determination explained the reasoning process that had been taken in determining the matter. It stated in part (citations omitted):

I confirm that you have no criminal convictions in NSW. However, it is relevant that public safety concerns relating to firearms are not solely limited to criminal convictions.

As quoted in the Firearm Bill Second Reading speech the underlying principles and aims of the Act are to confirm firearm possession and use as a privilege conditional on the over riding need to ensure public safety. In addition, in the Second Reading speech on 25 June 1996 relating to the Act, the Hon Mr J W Shaw (Attorney General) said, (at 3557):

"The legislation puts the public's right to safety before the privilege of gun ownership."
Consequently, the Commissioner must be satisfied that, on examination of all available information, it is not against the public interest for a person to hold a licence. If there is information available which gives rise to any doubts, these concerns must be taken at their highest value. It is also important to note that the refusal of a firearms licence does not require the burden of proof beyond reasonable doubt, as required for a criminal conviction.

I gave consideration to the fact that you have a lengthy history of authorisation to possess and use firearms for the past ten years. In that time you have not come to adverse notice with respect to misuse of firearms. Despite this, I give significant weight to the petition given to Police in which 27 members of your community have expressed their concerns regarding your possession and use of firearms. I believe these concerns are supported by the fact that Mr Malone withdrew his permission for you to shoot on his property following an assault incident on 28 October 2006, at the caravan park at which you reside.

Regarding this incident it was alleged that you physically assaulted a fellow caravan park resident, causing sufficient injuries to require hospitalisation. You deny this accusation and assert that the allegations may be part of an attempt to sue the caravan park or yourself for financial gain. However, I note that no evidence was provided to demonstrate that such an attempt has been made in the past 14 months since the incident. Therefore that suggestion does not hold much weight. I further note Police advice that the charge against you was dismissed at Court because the witness to the incident fled the district prior to the hearing. I also note there is no indication that the victim has retracted his allegations. Therefore I find probable grounds to conclude that the incident may have occurred exactly as alleged and believe it is appropriate to assign weight to the allegations.

The interests of the public in certain circumstances include its interest in its own safety, in maintaining the principle that individual access to firearms is a conditional privilege not a right and its related interest in tight, strict and fair control of the presence of weapons in the Australian community. These interests are clearly reflected in the principles and objects of the Act. The Administrative Decisions Tribunal (ADT) has also agreed with the view that it is not in the public interest for a person to hold a firearms licence if the Commissioner could not be satisfied that they did not present a danger to public safety.

You claim that the petition against you is nothing but malicious lies designed to destroy your good reputation. However, in my view the petition provides reasonable grounds to conclude that, for whatever reasons, the community is fearful of the prospect of your involvement with firearms. The ADT has held that "what is in the public interest is very substantially the same question as whether there is a threat to public safety ". Clearly 27 members of your community have actively demonstrated that they feel threatened and I believe it would be wrong for the Commissioner to ignore their claims.

I note your submission that you grew up on a sheep station and have used firearms since you were 12 years old. Your application for a firearms licence is to authorise your pursuit of sports. However, the ADT held that an applicant's personal interest in returning their licence cannot outweigh the public interest in the maintenance of a safe and responsible system of possession and use of firearms. The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. I do not believe your recreational needs should be placed above your community's right to feel safe and the public concerns expressed are sufficiently valid to deny your application.

The external review

5 The applicant applied to the Tribunal for review of the determination to refuse the applicant a licence

Relevant legislation

6 The underlying principles of the Act are set out in section 3 of the Act. These include a confirmation that firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage of firearms.

7 Part 2 of the Act deals with the issue of licences and permits to possess and use firearms. The licensing provisions are contained in Division 2 of the Act and for the purposes of this application the relevant section is section 11. Section 11 sets out general restrictions on the issue of firearms licenses. The relevant provisions are as follows:

11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

...

(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

...

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

8 Section 24(2)(d) of the Act provides that the Commissioner of Police may revoke a firearms licence for any reason prescribed by the regulations.

9 Clause 19 of the Firearms Regulation 2006 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.

Evidence

10 The respondent filed and served a copy of its file in relation to the applicant’s application. In addition to those documents on the file, the respondent relies on the statement of Mr Bartlett Mervyn Christopher Vaughan; the statement of Mr Stuart Luscombe; the statement of Mr Graham Russell; and the statement of Mr Gary Prince; and the statement of Senior Constable Mark Walsh. The respondent also relies on the hospital records in relation to Mr Luscombe’s admission on 28 October 2006, the Fact Sheet outlining the allegations relied upon to support the charges that were brought against the applicant and the transcript of the criminal proceedings in the matter of Police v Bruce Humphrys heard at Local Grafton Court on 27 March 2007.

11 The respondent also relies on the petition that was admitted into evidence under section 75(2) of the Administrative Decisions Tribunal Act 1997. The signatures have been deleted from the copy of the petition that was provided to the applicant. Senior Constable Walsh gave evidence that the petition was provided to the Police in confidence. The signatories to the petition requested that their details be dealt with in a confidential manner and that their names or addresses not be made available to the applicant. The petition is dated 2 April 2007, contains what purports to be 27 signatures and stated:

“We the undersigned being residents of the Grafton Sunset Caravan Park are concerned for our safety and the safety of others if Mr Bruce Humphrys is allowed to hold a licence for firearms and to keep firearms.

This is due to his changed and unpredictable character that he has demonstrated lately.

Therefore we take up this petition to prevent him from obtaining a licence and from being allowed to own firearms.”

12 The applicant gave evidence on his own behalf and also called Mr Gregory Malone and Ms Lorraine Malone, the former operators of the Caravan Park.

Mr Vaughan

13 Mr Vaughan has been the owner of the Royal Hotel South Grafton since 1989 and on 28 October 2006 he was working at the hotel, serving customers. He stated that two patrons who he knows as Bruce and Russell and who reside at the Caravan Park, were drinking at the hotel. He has known Bruce for about 12 months or more as he would attend the hotel on a regular basis. Following a conversation with two other patrons, Mr Vaughan placed a bottle of raspberry cordial where Bruce and Russell were sitting.

14 Bruce asked Mr Vaughan why he had been given a raspberry cordial. Bruce repeated this a query number of times and began to argue with Mr Vaughan. Bruce stated that he had never seen Bruce behave the way he did. Mr Vaughan then had a conversation with Russell and as a result both men finished their drinks and left the hotel on their pushbikes. Mr Vaughan did not think that either Bruce or Russell was intoxicated when they left the hotel.

Mr Stuart Luscombe

The respondent relies on a notebook statement given by Mr Luscombe on 29 October 2006 and the transcript of evidence given by Mr Luscombe in the criminal proceedings on 27 March 2007. Mr Luscombe did not appear at the hearing.

15 Mr Luscombe’s evidence was that prior to the incident on 28 October 2006 he had known the applicant for about five or six years and that they had been on amicable terms. At about 7.30 pm on 28 October 2006 he heard banging on the glass door of the annex to his caravan and someone trying to get in. When he looked up he saw the applicant who was ‘waffling on about strawberries or something or other’. He stated that when he opened the door the applicant hit him in the face. He went down on his knees and the applicant grabbed him and pushed him into the BBQ area. He ran him into the BBQ and five of Mr Luscombe’s ribs were broken. The applicant then threw him on the ground and his head hit bricks that were beside the BBQ area, grabbed his head and banged it into the ground. He then let Mr Luscombe go and started kicking him in the back.

16 Mr Luscombe stated that he was yelling out for help and then all of a sudden the applicant changed his attitude and he said: "Stu, Stu, are you all right." He then heard someone in the background saying, "What's happened."

17 Mr Luscombe recognised that person as a neighbour, Graham Russell. The applicant then put his knee in Mr Luscombe’s back a second time and whispered in his ear: "You say the right thing, I just live over there so you say the right thing."

18 Mr Luscombe stated that when the ambulance arrived he heard someone saying that he had had a fit. He said that the ambulance officer asked him if he had had a fit and that he responded that had not had a fit but that the applicant had assaulted him. He stated that he has never suffered fits at any stage of his life. Whilst in transit to the hospital Mr Luscombe asked the ambulance officer to contact the police. Mr Luscombe was admitted to hospital and remained at the hospital for a week. At the hospital Mr Luscombe spoke to police officers who recorded a statement he gave at that time. Mr Luscombe signed that as a true and correct record.

Mr Graham Russell

19 In October 2006 Mr Russell was a neighbour of both the applicant and Mr Luscombe at the Caravan Park. He provided a notebook statement to police on 29 October 2006 in which he recalled the events of the previous night. He stated that he was home at about 7.30 and had heard yelling from Mr Luscombe’s place. He went outside and saw the applicant crouching over Mr Luscombe who was lying behind his car. The applicant told him that Mr Luscombe had had a fall and that he had been unable to contact the ambulance. Mr Russell said that he went to the Caravan Park manager’s office and got help. On his return he heard Mr Luscombe say “Why did you hit me?” and that when Mr Luscombe said that, the applicant was the only person in the vicinity. He waited until the ambulance arrived and had a brief conversation with the applicant. He said that he could smell alcohol on the applicant’s breath.

Mr Gary Prince

Mr Prince is an ambulance officer who attended to Stuart Luscombe at the Caravan Park on 28 October 2006. He had been advised that a person at the caravan park was having a fit. His evidence is that Mr Luscombe denied that he had had a fit and asserted that the male person kneeling next to him at the Caravan Park had assaulted him.

20 Mr Prince stated that he believes that from the way that Mr Luscombe presented it was not likely that he had had a fit.

Senior Constable Mark Walsh

21 Senior Constable Walsh attended the hearing, gave evidence and was cross-examined. He also provided a written statement that is in evidence.

22 Senior Constable Walsh stated that he attended the emergency department of the Grafton Base Hospital at around 9pm on 28 October 2006. At the hospital he spoke to Mr Luscombe and observed that Mr Luscombe had abrasions to his face and hands. Mr Luscombe told him that the applicant had assaulted him.

23 Senior Constable Walsh attended the hospital again at 9.00am on 29 October 2006 accompanied by Constable Adam Vary. He said that Constable Vary took a statement from Mr Luscombe and also took a series of digital photographs of Mr Luscombe's injuries. He also stated that on 29th October 2006 Constable Vary attended the Caravan Park and took a number of digital photographs of the BBQ area located at the rear of the caravan carport area. He took a statement from Mr Russell, spoke with the applicant and seized three firearms, a bayonet and sheaf along with the applicant’s shooters licence.

24 At around 9 pm on 29 October 2006 Senior Constable Walsh spoke with the applicant at Grafton Police station. He told the applicant that he was investigating an assault upon Mr Luscombe and advised him that he was under arrest for an alleged assault. Senior Constable Walsh stated that the applicant said 'I was just helping him, he must have had a fit.' The applicant was charged with assault occasioning actual bodily harm and he declined to be interviewed.

25 Senior Constable Walsh stated that he received the petition and forwarded it to the Firearms Registry together with a report recommending against the applicant holding a licence or having his firearms returned. He was subsequently contacted by the NSW Police Force’s Administrative Law Unit, and was asked to speak to the signatories of the petition. He attended the Caravan Park and spoke with the owners. He was advised that none of the people who signed the petition were prepared to provide a statement and that they wished to rely on the petition as evidence of their concerns. The new owner further stated that they did not wish for firearms to be stored in the Caravan Park.

26 He identified a number of photographs that depict Mr Luscombe and the BBQ area - the location where the alleged assault is said to have occurred. The photographs of Mr Luscombe taken at the hospital appear to depict injuries.

27 The photos of the BBQ area, taken on the morning of 29 October 2006, appear to depict blood. In a photograph depicting the corner of Mr Luscombe’s car there appears to be some blood on the corner of the car.

Mr Gregory Malone

28 Mr Malone previously operated the Caravan Park. He had given his permission for the applicant to shoot on his property but withdrew that permission following the incident on 28 October 2006. He organised the petition and gave it to Senior Constable Walsh.

29 Mr Malone agreed that following the incident on 28 October 2006 he had given the Applicant notice to leave the Caravan Park and that he had commenced proceedings against the Applicant in the Consumer, Trader & Tenancy Tribunal (“the CTTT”). The CTTT proceedings were adjourned until after the Local Court matter and Mr Malone agreed that he had effectively abandoned those proceedings. He agreed that he had written a number of letters of demand to the applicant.

30 Mr Malone denied that he had paid Graham Russell $1500 to testify in the Local Court matter or that Graham Russell had left without giving evidence. He denied that he had been humiliated by the outcome of the Local Court proceedings and the CTTT proceedings and also denied that he had tried to discredit the Applicant as a result of that humiliation. He said that he had been approached by residents of the Caravan Park as a result of threats made by the applicant and he had agreed to organise the petition in the interest of his own safety and that of the other tenants. He does not believe that it is in the public interest for the applicant to old a firearms licence.

31 He said that he had sold the Caravan Park and moved away partly because of threats made by the applicant.

Ms Lorraine Malone

32 Ms Malone gave evidence of her attendance in the CTTT proceedings. She denied that the petition had been organised as a result of her being humiliated in the CTTT proceedings. She did not dispute that she had written to the applicant in relation to his failure to make payments in relation to his guest’s use of the Caravan Park’s amenities but she denied that it was because she had been humiliated by the outcome of the CTTT proceedings. She said that there was no point in pursuing the CTTT proceedings once the Local Court proceedings had been concluded.

The applicant’s evidence and submissions

33 The applicant gave evidence on his own behalf. He provided evidence of the incident on 28 October 2006.

34 The applicant had been acquainted with Mr Luscombe for several years; they had got on well and had lunch together on a regular basis. On 28 October 2006 they had both been at the Royal Hotel. The applicant had been at the hotel for a considerable number of hours and he consumed eight or nine schooners of beer. At about 7.30 he was in his van and he heard a noise. He went out to see what was causing the noise and he saw Mr Luscombe lying between the annex to his van and his car. He said he went to Mr Luscombe and offered assistance and thought that Mr Luscombe had had a fit. He was unable to call for assistance as his phone was locked but Graham Russell went to the Caravan Park’s office to call an ambulance. When the ambulance arrive he told that ambulance officer that the thought that Mr Luscombe had had a fit.

35 He denied that he had assaulted Mr Luscombe and asserted that he had in fact gone to Mr Luscombe’s assistance. He referred to a photo of his hands, taken on 29 October 2006, to show that there were no injuries on hands. He asserted that there were no marks on him because he had not been fighting. He does not dispute that Mr Luscombe suffered injuries on that occasion, but says that he did not cause those injuries. He also said that Mr Luscombe had had a car accident at about the same time as the incident on 28 October 2006 and that this might provide an explanation for some of the injuries depicted in the photographs.

36 He asserted that the petition is a malicious attempt to destroy his good reputation and that it was fraudulently organised by the Caravan Park owners who approached other residents of the Caravan Park to sign it. He said that it is not possible that 27 people would have signed the petition and that three of four of the residents had told him that they had refused to sign the petition.

37 The applicant gave evidence that the Caravan Park owners had given him notice to leave the Caravan Park after the incident on 28 October 2006. The applicant had refused to leave and the owners had unsuccessfully tried to obtain a termination order from the CTTT. They were humiliated by this failure and tried to discredit the applicant to anyone who would listen. He said that Graham Russell had told him that Mr Malone had paid him $1500 to testify against the applicant in the Local Court matter but that Graham Russell had left without giving evidence. He said that Graham Russell had used the applicant’s phone to call the bank to confirm that the money had been deposited in his account and that he left the following day with Mr Malone’s money.

38 The applicant said that it is important to his reputation as a security guard that his reputation is not questioned. He asserted that Mr Luscombe had lied about the incident on 28 October 2006. He says that the petition is false and that he is not a danger to anyone. Accordingly, he should be permitted to hold a firearms licence.

The respondent’s submissions

39 Ms Saunders provided written submissions on behalf of the respondent. She referred to the transcript of the Local Court hearing and specifically to the Magistrate’s findings. His Honour stated:

“The photographs that have been tendered of the injuries certainly are consistent in my experience with someone who has been kicked and punched. It has been put by the accused, a somewhat unusual defence, that he in fact didn't touch the victim at all, that the victim had, in his opinion, had a fit and was suffering a fit at the time he came out of the van. He denies ever striking or kicking the victim. There are no witnesses to the incident and it is purely his word against that of the victim. More importantly there is also no evidence, medical evidence, which would discount the proposition that the injuries that were sustained by the victim could have arisen as a result of a fit, a contention that the defendant or the accused has always maintained that was the reason sustained by the victim on that particular day.

It was also put to the victim could he explain why there would have been blood on the car if, in fact, the incident had happened the way he said it did and he said he couldn't from the version that has been given by the accused. He then says that when he first saw the victim it was between the car and the annex and, therefore, the blood may have got on the car when he had the fit or fell down in that particular area. As I say the onus is upon the prosecution to prove the offence beyond a reasonable doubt, there being no evidence to discount the fact that the injuries could have been sustained in another way other than the assault and there being no witnesses to the incident then the defendant is entitled to the benefit of that doubt.

Bearing in mind the amount that the accused had had to drink on that particular night and the lack of motive I should say, on the balance of probabilities, it would be fairly easy to find that the offence happened in the manner as described by the victim, however that is not he onus, it is beyond a reasonable doubt.”

40 Ms Saunders relies on the statement of Mr Prince, the ambulance officer who provided medical assistance to Mr Luscombe. Mr Prince stated that it wasn't likely that Mr Luscombe had had a fit. This medical opinion evidence was not available to the Local Court during the criminal proceedings.

41 Ms Saunders submits that the Tribunal is able to have regard to the allegation of assault against the applicant even though the criminal proceedings were dismissed. She relies on the Appeal Panel decision in Commissioner of Police v Mercer (GD) [2005] NSWADTAP 55 where the Appeal Panel stated at paragraph [20]:

“It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter.”

42 She submits that when considering the allegations against the applicant the Tribunal should do so to the civil standard proof. She referred to views expressed by Judicial Member Higgins in Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167 at paragraph [17] where it was held:

17 Even though the Tribunal is not bound by the rules of evidence it is well established that it must act judicially in accordance with the rules of procedural fairness/natural justice. It is also well established that in making findings of fact the Tribunal must do so to the civil standard of proof, on the balance of probabilities and it must do so by applying the principles set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 360 at 361-362.

43 Ms Saunders submits that similar issues apply with respect to the refusal to grant a firearms licence as are relevant to the cancellation of a licence. She says that the allegations against the applicant were serious. The Local Court Magistrate would have found the allegations against the applicant proven on the balance of probabilities and this demonstrate that the applicant may present a danger to public safety. She submits that it is not in the public interest for the applicant to hold a firearms licence. Accordingly the decision of the Commissioner of Police to refuse the applicant's licence should be affirmed.

Findings

44 In October 2006 the applicant was charged with Assault Occasioning Actual Bodily Harm and the respondent suspended his Category AB firearms licence as a result of the alleged conduct. The respondent subsequently received a petition that purported to be signed by a number of persons who resided at the Caravan Park who were concerned about the prospect of the applicant having his firearms licence reinstated.

45 The criminal matter against the applicant was dismissed on 22 January 2007. In October 2007 the applicant reapplied for a Firearms licence. That application was refused and the refusal was affirmed on internal review.

46 In my view, the respondent’s evidence supports Ms Saunders’ submission that the allegations against the applicant were serious and would have been found proven to the civil standard. I agree with the submission that I am entitled to take account of material considered in a criminal proceeding. It is readily apparent from the transcript of those proceedings that the charge was dismissed because of the criminal standard that applied. In these proceedings the relevant standard as stated by Judicial Member Higgins in Hardy. It is clear that the Local Court Magistrate would have reached a different conclusion had the civil standard applied. In regard to the incident on 28 October 2006, the evidence before me suggests that it is probable that the applicant acted in the manner that the respondent has alleged.

47 The evidence suggests that considerable animosity existed between the Caravan Park owners and the applicant. The Caravan Park owners clearly wanted the applicant to leave the Caravan Park and commenced CTTT proceedings in an effort to achieve that. They were obviously frustrated by the failure to achieve that. However, in my view, it is unlikely that the petition was fraudulently created. I am satisfied that a number of the residents of the Caravan Park were concerned about the prospect of the applicant holding a firearms licence. This is understandable in light of the incident on 28 October 2006.

48 The respondent argues that it is not in the public's interest for the applicant to hold a firearms licence because of his actions on 28 October 2006.The applicant has denied that he was guilty of the assault allegations and accordingly he has presented little evidence to contradict the respondent’s argument. Simply put, his position is that he held a firearms licence without incident for a considerable time, he was guilty of the assault allegations and therefore there is no risk to public safety. I do not agree with that argument.

49 In my view, the evidence supports a finding that he was probably guilty of the assault on Mr Luscombe. He has expressed no remorse for that conduct. Nor has he presented any evidence to show that there is no risk that similar conduct might be repeated in the future.

50 The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

“25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

51 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, Deputy President Hennessey found at paragraph [33] that the comments in Toleafoa were equally applicable in the context of the Firearms legislation.

52 In Ward the Deputy President also stated at paragraph [28]:

“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 there is virtually no risk.”

53 A significant period of time has passed since the incident on 28 October 2006. It may be that the applicant’s conduct on that day was out of character and it may be that there was some explanation for the applicant’s behaviour on that day that has not been revealed. The applicant has not provided any evidence to address those issues. Nor has he provided any evidence with respect to the issue of whether any risk to the public that existed at the time of the incident on 28 October 2006 still exists. That being the case, I am not satisfied that there is virtually no risk to public safety if the applicant were given access to a firearm. I agree with the respondent’s argument that it is not in the public interest for the applicant to hold a firearms licence at this time.

54 It follows that the applicant should not be granted the licence that he is seeking. Accordingly the decision under review should be affirmed.

Decision

The decision to refuse to grant the applicant a firearms licence is affirmed.