Keys v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 83

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Keys v Commissioner of Police, NSW Police Force [2024] NSWCATAD 83

Hearing dates:

13 October 2023

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW — firearms licence — refusal — whether holding firearms licence contrary to the public interest — fit and proper person

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

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

Balle v Commissioner of Police [2021] NSWCATAD 187

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

Dalziell v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 79

Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43

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

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

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Salter v Commissioner of Police [2021] NSWCATAD 37

Tolley v Commissioner of Police [ 2006] NSWADT 149

Ward v Commissioner of Police [2000] NSWADT 28

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

Category:

Principal judgment

Parties:

Jack Keys (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Maddocks Lawyers (Respondent)

File Number(s):

2023/00117251

Publication restriction:

(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, the hearing is conducted, insofar as it relates to the Confidential Material, in the absence of the Applicant, any legal representative for the Applicant and the public.
(2) Pursuant to s 59 of the Administrative Decision Review Act 1997, the Respondent is not required to lodge copies of the documents, that being the Confidential Material with the Tribunal in accordance with the s 58 of the Administrative Decision Review Act 1997.
(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material is prohibited.
(4) Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal.
(5) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the private hearing of this application, including any evidence given is prohibited.

REASONS FOR DECISION

1. This is an application by Mr Jack Keys (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, NSW Police Force (“the Commissioner” or “the Respondent”). The delegate’s decision was to refuse the Applicant’s application for a category AB firearms licence under the Firearms Act 1996 (NSW) (“the Firearms Act”).

2. The decision was subject to an internal review by the Commissioner on 15 March 2023. The internal reviewer affirmed the decision.

3. The reasons for the refusal stated that the delegate considered that it was not in the public interest for the Applicant to hold a firearms licence because of concerns existing regarding the associates who resided at the Applicant’s residential location.

The Applicant’s firearms licence application history

4. On 3 July 2020, the Applicant lodged an application for a category AB firearms licence citing the genuine reason of recreational hunting/vermin control based on permission to shoot from the owner or occupier of rural land.

5. On 28 September 2021, the Firearms Registry sent a request for a doctor's assessment to the Applicant. This was because the Applicant had admitted to previously suffering from depression in 2014 while in custody.

6. On 18 November 2021, a report of Dr Sanjay Sinha was provided to the Firearms Registry. Dr Sinha noted that the Applicant was arrested and held in custody after a drinking binge in 2014. He reported apparently had too much to drink due to stress and does not recall feeling depressed or delusional. Following this incident, the Applicant told Dr Sinha that he stopped drinking and has never needed any medical or psychological help. He also said that he never started any psychological treatment. As at the date of the assessment, the Applicant was deemed asymptomatic and his mental state showed no pathology. This is not in dispute.

7. On 28 January 2022, the Firearms Registry refused the Applicant's firearms application pursuant to s 11(5)(c) of the Firearms Act, as he was then subject to a provisional apprehended violence order (“PAVO”). The PAVO was withdrawn.

8. On 21 November 2022, the Applicant lodged a further application for a category AB firearms licence. He cited the genuine reason of shooting on rural land.

9. On 16 February 2023, a delegate of the Commissioner refused the application for a firearms licence on the basis that concerns existed regarding the associates who resided at the Applicant's residential location and how their conduct may have impacted upon public safety in the context of a firearms licence (“the First Decision”). On the same day, the Applicant requested an internal review of the decision. He made the following submissions:

(a) he has a tenant and her child living in a detached self-contained flat on his property and has no association other than a short-term living arrangement while they are finding other living arrangements; and

(b) he is unaware of any legal issues these people may have.

10. On 24 February 2023, the Applicant provided further information to the Firearms registry in support of his internal review request, and stated that:

(a) Ms Kathleen Noble has been residing in the main house of his property and is the co-owner's mother; and

(b) Ms Gee has lived in a detached granny flat on the property for approximately 5 months with her son Mr Tarrant, who since moved out;

(c) he has attempted to aid some people in a short-term living arrangement and has no knowledge or prior association with these people.

11. On 15 March 2023, a delegate of the commissioner undertook an internal review of the First Decision and affirmed the decision to refuse the Applicant's request for a category AB firearms licence.

12. On 6 April 2023, the Applicant lodged an application for administrative review in the Tribunal.

Issues for determination

13. The Tribunal is to determine whether the correct and preferable decision is to refuse the Applicant’s firearms licence application.

14. This determination requires consideration of whether it would be contrary to the public interest for the Applicant to hold a firearms licence. Also, whether the Applicant is a fit and proper person to hold a firearms licence.

Applicable legislation

15. Section 9 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by s 75 of the Firearms Act. The Tribunal’s jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.

16. This application is made under s 75 of the Firearms Act and s 9 of the ADR Act.

17. The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is 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. Section 3(1) provides:

3   Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

(c) to facilitate a national approach to the control of firearms.

18. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

19. Section 11(4)(a) of the Firearms Act prescribes that a firearms licence must not be issued if the Commissioner has “reasonable cause to believe the applicant may not personally exercise continuous and responsible control over firearms because of … the applicant’s way of living or domestic circumstances”.

20. Section 11(7) of the Firearms Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

Way of living

21. The application of matters concerning the operation of s 11(4)(a) of the Firearms Act has been considered in many applications before the Tribunal and its predecessor the Administrative Decisions Tribunal.

22. The Tribunal has previously noted that there is no basis for differentiating between conduct of a firearms licence applicant and the conduct of another, which may impact on public safety in the context of a firearms licence (see Tolley v Commissioner of Police [2006] NSWADT 149 at [31]).

23. The Tribunal has previously considered that continued associations with ‘known criminals’ is a consideration worthy of reasonable weight (see Salter v Commissioner of Police [2021] NSWCATAD 37 at [42]).

24. The Tribunal has held that even when there is no evidence that an applicant has personally engaged in any drug dealing, firearms trafficking, violence or other similar criminal activities, they could come under pressure to make guns or ammunition available to criminals or criminal organisations if association with them continues (see Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194 at [90]).

The public interest

25. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.”

26. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33], the Appeal Panel said that:

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

27. In Cusumano v Commissioner of Police [2001] NSWADT 50 at [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

28. This approach has been applied consistently in matters where the reviewable decision is to refuse to grant a licence. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

29. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at [27]-[28], Deputy President Hennessy said that in terms of public safety:

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

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 that there is virtually no risk.”

30. Ward v Commissioner of Police dealt with the issues of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130]-[134].

31. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at [64]-[66].

32. In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].

33. The Respondent has lodged a bundle of documents pursuant to s 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.

34. The Respondent applied to the Tribunal for an order under s 59(1) of the ADR Act that it not be required to lodge a copy of certain documents (“the Confidential Material”) with the Tribunal and for orders under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”).

35. The Tribunal made the orders under s 59 of the ADR Act and s 64 of the NCAT Act in relation to the Confidential Material. As a consequence, the Respondent was not required to lodge some material on which the Commissioner relies, and the Applicant has not been given a copy of that material. Some of the Confidential Material has been admitted into evidence in the substantive matter and I have taken that material into account.

The material before the Tribunal

36. As noted, the Respondent relies on three bundles of material filed pursuant to s 58 of the ADR Act (“the section 58 documents”) a documents under which an order pursuant to s 59 of the ADR Act applies and written submissions. This material includes a number of records held in the Respondent's electronic database ("COPs"). The Respondent relies on records showing associates of the Applicant’s criminal history. The Applicant’s traffic record report is included. The Respondent also relies on open and confidential statements provided by Sergeant Cameron Adams dated 26 May 2023 annexed additional material to his confidential statement and the Applicant has not had access to that material. The Applicant has also not had access to a further confidential statement contained in the Confidential Material.

37. The Applicant relies on his application and annexed documents. He also tendered a bundle of documents which was filed on 31 August 2023 including a written statement, registration checks, character references, witness statements in relation to the PAVO proceeding, correspondence passing between himself and NSW Police and a training certificate and authority/permission to shoot.

38. The Applicant and the Respondent’s solicitor made oral submissions at the hearing.

Background and criminal history of known associates

39. At this juncture, it is relevant to note that the Applicant does not dispute the following criminal history and his association with each of the persons referred to below. Apart from Ms Kathleen Noble (“Ms Noble”), the Applicant contends that each of the persons left his residence, before, and from early 2023. He says he is no longer in contact with them.

40. The Applicant currently lives with Ms Noble, who recently was imprisoned for an offence under the Crimes Act 1914 (Cth) and has been found guilty of an offence under the Firearms Act.

41. The Applicant previously lived with, or associated with, Naomi Gee (“Ms N Gee”), Jace Tarrant (“Mr J Tarrant”) and Michael Tarrant (“Mr M Tarrant”), all of whom have criminal histories, and in the case of Ms N Gee, a history of domestic violence.

42. The following summary of each of the Applicant’s associates is relevant in the disposition of the administrative review application.

Provisional Apprehended Violence Order

43. On 12 January 2021, the Applicant and Ms N Gee were the persons named in a domestic incident in which a PAVO was issued against the Applicant and Ms N Gee, with the victim being the Applicant's sister Kristen Gee.

44. On 30 May 2022, the PAVO issued against the Applicant was withdrawn at the Dubbo Local Court, however Ms N Gee continues to be a defendant in an Apprehended Violence Order (“AVO”) until 1 February 2024.

Kathleen Noble's criminal history

45. Ms Noble, has been found guilty of:

(a) driving while suspended in 2012; and

(b) not keep firearm safely - not pistol/prohibited firearm in 2016, for which she was made subject to a s10 Bond for 12 months and subject to a condition to inform the Court of any change of residential address.

46. On 12 May 2017, Ms Noble was also convicted and sentenced to five years imprisonment for two offences of obtaining a financial advantage by deception under the Crimes Act 1914 (Cth). Ms Noble was also made subject to a reparation order in the amount of $394,455.

47. Furthermore, Ms Noble's drivers licence conditions dated 15 September 2020 note that she suffers from anxiety and post-traumatic stress disorder (“PTSD”). This is relevant because Ms Noble lives with the Applicant.

Naomi Gee's criminal history

48. The Applicant's sister Kristin Gee was in a domestic relationship and married to Ms N Gee from approximately July 2015 to January 2022.

49. Ms N Gee has previously resided with the Applicant in the granny flat at the back of the Applicant's residence with her son Mr J Tarrant from January 2022 until early 2023.

50. Ms N Gee has an extensive criminal history which includes:

(a) a charge of destroy or damage property (Domestic Violence) for which she was made subject to a s10 Bond for 12 months on 23 April 2016 and a charge of common assault which was withdrawn. The details of this offence are described in COPS Event E 63684388, which notes that the Applicant was contacted by his sister (the victim in the incident) and attended the residence to assist his sister with leaving the location;

(b) destroy or damage property (T2) for which she was convicted and fined on 8 September 2021;

(c) common assault (T2) for which she was convicted and fined on 8 September 2021; and

(d) use of Carriage Service to Menace / Harass / Offend for which she was convicted and made subject to a conditional release order for 12 months on 2 February 2022.

51. Ms N Gee was made subject to an enforceable AVO against Kristen Gee on 12 January 2022, which remains in place until 1 February 2024.

Michael Tarrant's criminal history

52. Mr M Tarrant was in a domestic relationship with Ms Noble and lived with the Applicant for a period of 3 months from August to October 2017.

53. Mr M Tarrant has been charged and convicted of the following offences relating to the possession and administering of drugs:

(a) possessing a prohibited drug on 8 February 1989;

(b) administering a prohibited drug on 8 February 1989;

(c) possessing a prohibited drug on 8 July 1992; and

(d) self-administering a prohibited drug on 8 July 1992.

54. Additionally, Mr M Tarrant was also charged and found guilty of offences relating to the possession and use of an unauthorised firearm 22 June 2016, for which he was made subject to bonds made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months and was required to inform the Court of any change in residential address.

55. Finally, Mr M Tarrant was charged and convicted of driving a vehicle with an illicit drug present in blood on 5 June 2019.

Jace Tarrant's criminal history

56. Mr J Tarrant is the son of Ms N Gee and lived with the Applicant in the granny flat at the back of the Applicant's residence from January 2022 until early 2023.

57. Mr J Tarrant was charged and found guilty of the following offences on 22 September 2021:

(a) aggravated break and enter into a dwelling in company to steal less than $60,000.00 (T1);

(b) two counts of receive property-theft serious indictable offence less than $5000;

(c) three counts of being carried in conveyance taken without consent of owner (T2); and

(d) dishonestly obtaining financial advantage by deception (T1).

58. On 25 October 2022, Mr J Tarrant was charged and found guilty of the following offences:

(a) failing to stop when directed to do so;

(b) aggravated break and enter into a dwelling in company to steal less than $60,000.00 (T1);

(c) driving on a road without a licence; and

(d) taking and driving conveyance without the consent of the owner (T2).

59. Mr J Tarrant was bailed to the Applicant's home address for the 25 October 2022 offences.

60. The Commissioner contends that it is the Applicant’s association with each of the above persons, all of whom have serious criminal histories, that causes concern over him holding a firearms licence.

The Respondent’s case

61. The Respondent relies on the section 58 documents and the Confidential Material. This includes a number of records held in COPs.

62. The Respondent contends that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living and domestic circumstances. In particular, the Applicant either currently, or in very recent years, resided at the same property as each of the four persons named above.

63. Concerningly, both Ms Noble and Mr M Tarrant have been found guilty of offences under the Firearms Act, and Ms Noble was recently imprisoned for offences under the Commonwealth Crimes Act 1914. These convictions are not in dispute. The Firearms Act offences are relevant factors of which I give significant weight.

64. Additionally, Ms Noble suffers from anxiety and post-traumatic stress disorder, and the Applicant is aware that she receives treatment for those mental health conditions.

65. The Commissioner submits that the Applicant has a history of opening his home to persons with varied and lengthy criminal histories, even in cases where he is aware of their criminal histories, and in the case of Ms N Gee, a domestic violence history resulting in an ADVO. This raises concerns regarding the Applicant's ability to understand the risk that is posed by ongoing associations with persons who have extensive criminal histories and the consequential risks that may arise should firearms be stored anywhere near such persons.

66. Concerningly, the Applicant has also previously claimed to be "unaware of any legal issues" that either Ms N Gee or Mr J Tarrant had, despite being also named as a defendant in an PAVO arising from the same circumstances involving Ms N Gee, and being aware that Ms J Tarrant was being bailed to his address. I accept this submission.

67. It is therefore submitted that by engaging in a pattern of closely associating with the named individuals with whom there are serious concerns in regard to the possible access to firearms, and in circumstances where the Applicant is well aware of some if not all of those person's criminal histories, the Respondent contends that there are reasonable grounds to believe that the Applicant 'may not personally exercise continuous and responsible control over firearms'.

68. The Respondent also does not consider that a special condition requiring the Applicant to store firearms at a place other than his residence would alleviate the risks outlined above arising from the Applicant and his associations.

69. In relation to the public interest, the Respondent contends that the Tribunal would be satisfied that it is not in the public interest for the Applicant to be granted a category AB firearms licence.

70. The Respondent holds significant concerns with respect to the Applicant having access to firearms in circumstances where a number of his close associates (that he has permitted to reside with him) have criminal histories for theft, assault and firearms offences, mental health issues and histories of domestic violence incidents. Despite being aware of, or at least some of, the criminal histories and other issues regarding these individuals, the Applicant appears to have little understanding of the risk arising from their close association.

71. The Respondent relies upon the decisions in Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 79. The Commissioner contends that where “an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm”.

72. In considering all of the facts and circumstances, the Commissioner contends that the Tribunal cannot be satisfied that there is virtually no risk in issuing the Applicant with a firearms licence. Based on all of the above matters, it is submitted that the correct and preferable decision is to affirm the decision to refuse the Applicant’s licence application.

The Applicant’s case and his evidence

73. The Applicant provided a nine page statement in which he addressed some of the issues that the Respondent has raised. The statement is also in the form of submissions. He adopted the statement under oath at the hearing. I have treated it as a joint document pertaining to both his evidence and submissions.

74. The Applicant is a nurse and is gainfully employed. He attests to his understanding of the safe storage, transportation and use of firearms. He recognises the role of NSW Police and the Firearms Registry in respect of the firearms legislation and public safety. This weighs in his favour.

75. The Applicant draws to the Tribunal’s attention the report of Dr Sinha outlining his mental health assessment and there being no diagnosis of any psychosocial condition which might affect him being issued with a firearms licence. This is not disputed nor has it been put in contest by the Commissioner. I accept his submission.

76. I have considered and accept the Applicant’s evidence that he has no criminal history. This weighs in his favour. His traffic record includes one speeding offence almost nine years ago, in which the Applicant lost his provisional licence during a double demerit period in July 2014. I give this little to no weight. He has no known recorded criminal matters in his history apart from what is recorded above with respect to the PAVO, which I give minimal to no weight. This is because it was withdrawn by NSW Police.

77. The Applicant provided the following explanation in answer to his association the abovenamed persons who have the stated criminal histories.

78. He was not in any association with Ms Noble prior to approximately June 2017, and aside from her incarceration from May 2017 to November 2019, he was not aware of her being subject to any police matters. I accept this evidence.

79. He has had 'minimal contact' with Ms N Gee since she left his residence in early 2023, and had minimal association with her and his sister for several years, only reconnecting in mid-2021. However, I note that the Applicant was a witness to an incident concerning Ms N Gee and his sister in 2016. He lived in close proximity which enabled him to run from his house to their house in response to his sister's call for help. He also accepted in cross-examination that he may have ‘misworded’ him having no association with his Ms N Gee and Mr J Tarrant in providing answers to the Firearms Registry. This is an important part of the Applicant’s evidence, because, his response affects the reliability of his evidence. On 16 February 2023, in an email from the Applicant to the Firearms Registry, he stated he had “no association other than a short-term living arrangement” with Ms N Gee and Mr J Tarrant. Then on 24 February 2023, in a further email to the Firearms Registry, he again said “we attempted to aid some people in short-term living arrangement while trying to find permanent housing to prevent homelessness. We have no knowledge or prior association with these people”. This was patently untrue. He knew Ms N Gee, as this was his sister’s ex-wife, and, that Mr J Tarrant had been bailed to live at the premises.

80. In his cross-examination the Applicant said he may have misworded his statement, what he meant to say was “I had no association with her and my sister prior to early January 2022 events.” I do not accept this. The reference was to both Ms N Gee and Mr J Tarrant. Mr J Tarrant is the Applicant’s nephew and Ms N Gee is his sister in-law. The Applicant’s attempted clarification in cross-examination is not consistent with his association and relationship with each of Ms N Gee and Mr J Tarrant. Further, the Applicant was involved in a domestic incident in 2016, when he went to the assistance of his sister concerning Ms N Gee. The Applicant’s evidence about whether he attempted to mislead or provide false statements to the Firearms Registry is not reliable. I find the likely use of the phrase “no knowledge or prior association” was an attempt to so mislead the Registry, or, put a gloss on the facts, to benefit himself in receiving a favourable response and the granting of a licence.

81. The Applicant said Mr J Tarrant now resides in Cowra and that he has had no further contact with him since he moved locations. The Applicant said he attempted to provide Mr J Tarrant with a positive role model and show him the benefits of community involvement and responsible citizenship. I accept this evidence. It is unclear whether the Applicant was aware of Mr J Tarrant’s legal history when he wrote to the Firearms Registry. On the balance of probabilities, I find that he was so aware. This is because Mr J Tarrant was bailed to live at his property and in cross-examination he was unable to say one way or the other when he became aware of his legal situation.

82. He has had no further contact with Mr M Tarrant since late 2017 and had no association with Mr M Tarrant prior to approximately June 2017. I accept his evidence.

83. The Applicant contends that the Tribunal should not have any concerns about his close domestic relationship with Ms Noble and that as far as he is aware, her mental health is stable. He submits that on the open material before the Tribunal there is no evidence of current close personal associates who have extensive criminal histories which pose a risk to public safety.

84. He contends that the Tribunal should find that there is no risk to the public if the Applicant has access to firearms.

Discussion

85. This is a matter which concerns the public interest and specifically whether the Commissioner has reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant’s way of living or domestic circumstances and if it is in the public interest for the Applicant to hold a firearms licence.

86. The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the decision under review should be affirmed.

Public interest

87. I find that the Applicant is an honest but not a reliable witness in all respects. He has demonstrated valuable ties to the community and he himself, has an unblemished criminal record. He has a single traffic offence in 2014. His record weighs in his favour.

88. When considering protection of public safety and the objects of the Firearms Act, I must consider his associates and particularly those associates with criminal histories. The evidence reveals that at the date of this hearing, the Applicant’s only ongoing relationship or contact with the four named persons, is with Ms Noble. I am satisfied that his association with each of Ms N Gee, Mr J Tarrant and particularly Mr M Tarrant are no longer ongoing. I accept that he has no intention to associate with them in the future. This is because Ms N Gee and Mr J Tarrant were associated with the Applicant through his sister. That relationship has ended. In relation to Mr M Tarrant, this association was for three months and occurred back in 2017. I have confidence that there is no ongoing association with Mr M Tarrant.

89. The evidence establishes that the Applicant is in a continuing domestic relationship with Ms Noble. Ms Noble has a serious criminal history, which includes, a conviction for a breach of the Firearms Act. She also has a history of PTSD and anxiety. Ms Noble did not give evidence. I am unable to make any specific finding about whether her mental health is stable or not, or whether she is appropriately medicated or receiving ongoing treatment. Although, I accept the Applicant’s evidence that Ms Noble has not received hospital treatment during the period in which they have lived together. Notwithstanding this, when weighing risk to the public, I am unable to find that there is virtually no risk. This is because, when considering her criminal and mental health history, there is a real and appreciable risk to the safety of the public. On the evidence before me, it would not be in the public interest for the Applicant to hold a firearms licence while resident in the same premises as Ms Noble or to store firearms in such premises. Such a domestic arrangement could carry a real and appreciable risk to public safety.

90. In relation to the Commissioner’s submission that the Applicant’s association with Ms N Gee, Mr J Tarrant and Mr M Tarrant (and Ms Noble) demonstrates a concerning pattern, which would amount to virtually no risk to public safety, I accept that submission. While some of these associations are isolated, and in some circumstances short lived, and apart from Ms Noble I have found no longer exist. When considering all of these matters they amount to a real and appreciable risk to public safety if the Applicant was to be granted a firearms licence. Particularly in circumstances where his associates in two circumstances have in their criminal history a breach of the Firearms Act (Mr M Tarrant and Ms Noble) and events relating to violence in a domestic setting (Ms N Gee).

91. When looking at all the circumstances, and in adopting the reasoning in Hamid v Commissioner of Police, New South Wales Police Force and Dalzeill v Commissioner of Police, New South Wales Police Force, the Applicant’s voluntary association with each of the four named persons, raises a concern of public safety. Given the Applicant’s misleading statements to the Firearms Registry about him having no association or knowledge of Ms N Gee and/or Mr J Tarrant, I can not rely on his evidence in which he asserts in most cases he had no prior knowledge of the four persons prior criminal history. I find that the Applicant either knowingly, or unknowingly, has associated himself with some of the persons with serious criminal histories (as set out above).

92. I have placed particular weight on the continued association between the Applicant and Ms Noble. Ms Nobles’ criminal history includes a breach of the Firearms Act, a serious financial criminal conviction (although not related to violence or a firearm) but none the less one which demonstrates a disregard for the law. There is also an absence of relevant evidence concerning her mental health diagnosis. All of which are factors I have given weight concerning the safety of the public and the Applicant’s access to firearms.

93. In my view, the material leads me to the conclusion that at this time it is not in the public interest for the Applicant to be granted a firearms licence. I am not satisfied that there is virtually no risk to the public in the Applicant having access to firearms in terms of the decision in Webb v Commissioner of Police NSW Police Force.

Way of living

94. Similarly, I find that the Commissioner has reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant’s way of living or domestic circumstances. I accept that the Applicant has shown a pattern of opening his home to persons with varied and lengthy criminal histories. This has occurred in circumstances where he is both aware and unaware of their criminal histories, including domestic violence related matters and breaches of the Firearms Act. This pattern of recent, consistent and current association with known criminals is a consideration of which I give reasonable weight. It is a factor which could reasonably impact on public safety.

95. I accept that there is no evidence that the Applicant’s behaviour was “tainted” by the conduct of those with whom he associates. I also accept that in terms of any breaches of the law, the Applicant has a fully compliant history. However, as I have found above, the Applicant did not give frank information in two separate replies to the Firearms Registry when he stated “… we have no association…” and “we have no knowledge or prior association with these people”, referring Ms N Gee and Mr J Tarrant. This was clearly not the case. There is merit in the Commissioner’s submission that the Applicant either falsely, or intended to mislead the Firearms Registry in making a similar assertion on not one, but two occasions. I give this significant weight.

96. In Balle v Commissioner of Police [2021] NSWCATAD 187 at [14], the Tribunal said:

If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.

97. I adopt this reasoning and find that the Applicant either attempted to mislead, or put a gloss on his response to improve his chances of obtaining a licence. The firearms licencing legislative regime requires complete honesty and the provision of all relevant information to assess an application for a Firearms Licence. I have found that the Applicant was not frank in his response, which is a factor I give considerable weight.

98. The totality of the evidence leads to the conclusion that the Applicant is not a fit and proper person to hold a firearms licence without risk to public safety or order, because, of his way of living and his domestic arrangements which could impair his ability to exercise continuous and responsible control over firearms, and that his holding of the licence would present a real or appreciable risk to public safety, as that concept is understood in Webb v Commissioner of Police NSW Police Force. It would  be contrary to the public interest for him to hold a firearms licence. 

Order

1. The decision under review is affirmed.

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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: 27 March 2024