Khan v Commissioner of Police

[2022] NSWCATAD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Khan v Commissioner of Police [2022] NSWCATAD 20

Hearing dates:

23 November 2021

Date of orders:

14 January 2022

Decision date:

14 January 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Nicholls, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Firearms Act – issue of Category H licence

Legislation Cited:

Administrative Decisions Review Act 1997. Sections 58, 63.

Firearms Act 1996. Sections 3, 11, 16, 75

Cases Cited:

ABT v Bond (1990) 170 CLR 321

EMB v Commissioner of Police [2020] NSW CATAD 255

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCAT 31

MIAC v Li (2013) 24 CLR 332

MIBP v SZVFW (2018) 357 ALR 408

MIMIA v Yusef (2001) 206 CLR 323

Category:

Principal judgment

Parties:

Billal Amjad Khan (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
E. Thompson (Applicant)

Solicitors:
Armstrong Legal (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/00214081

REASONS FOR DECISION

INTRODUCTION.

1. On 26 July 2021 Mr. Billal Amjad Khan (“the applicant”) made an application to this Tribunal, pursuant to section 75(1)(a) of the Firearms Act 1996 (“the Act”), seeking review of the decision made on 20 June 2020 by a delegate of the NSW Commissioner of Police (“the respondent”, “the Commissioner”) that the applicant’s application for a Category H firearms licence be refused.

BACKGROUND.

2. At the time of the hearing of this matter the applicant was 39 years of age. The applicant has qualifications as a chiropractor and has been self-employed for about 15 years in that capacity. He was previously married to Ms. Sadiqa Bajwa with whom he had two children. Ms.Bajwa gave evidence in these proceedings, and was cross-examined by the applicant’s counsel. He subsequently remarried. His current wife was not called to give evidence.

3. It is not in dispute that the applicant applied for the firearms licence for the purposes of sport/target shooting. (See section 16(1)(a)(i) of the Act.)

4. At all times the applicant was represented by a firm of solicitors, and in addition, by counsel at the hearing. The respondent was represented by a firm of solicitors. Both parties made written submissions prior to the hearing of this matter. [The applicant’s submissions- “1AS”. The respondent’s submissions- “1RS”]. At the end of the hearing the parties were given the opportunity to make further written submissions [The applicant- “2AS”. The respondent- “2RS”.]

THE CENTRAL ISSUE.

5. The applicant submitted that the delegate’s decision is vague, lacking in particulars, made little reference to documentation to support the decision and failed to give sufficient weight to the applicant’s circumstances. In 1AS he asserted that the delegate’s decision “amounts to a jurisdictional error”. (1AS at [3])

6. It is not for this Tribunal, in the current circumstances, to determine whether the delegate’s decision revealed any legal error in the exercise of the jurisdiction given to the respondent, and which in this case was exercised by his delegate. Such consideration is for judicial review, not, in the circumstances, for this Tribunal as currently constituted. (In this case the Tribunal is not exercising any judicial power. The question of jurisdictional error is one of a question of law to be determined in the exercise of a relevant power. See MIMIA v Yusef (2001) 206 CLR 323 at [82]).

7. Further, whatever the state of the delegate’s decision record, the central issue for this Tribunal now is the question as to the correct and preferable decision in relation to the application for the firearms licence based on the material considered by the delegate, and the further material subsequently put before the Tribunal by the parties. The current determination involves the exercise of powers set out in section 63 of the Administrative Decisions Review Act 1997.(See in particular section 63(3))

THE RELEVANT LEGISLATIVE FRAMEWORK.

8. The statutorily expressed underlaying principles governing the operation of the Act includes that firearms possession and the use of firearms is a privilege conditional on the overriding need to ensure public safety. (Section 3(1)(a) of the Act). The applicant himself recognised this. (See his affidavit of 16 November 2021 at [3]).

9. For current purposes, also noting that this was echoed in the delegate’s decision, section 11(3)(a) of the Act provides that the Commissioner must be satisfied that an applicant is a fit and proper person and can be trusted to have possession of a firearm without danger to the public safety.

10. Specifically, but without limiting the generality of this, section 11(4)(a) of the Act provides that a licence must not be issued if there is reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of, relevantly, the applicant’s domestic circumstances.

11. The importance of the concept of public safety and the public interest is reflected in section 11(7) of the Act, which provides that the issue of a licence may be refused if such issue is considered to be contrary to the public interest.

12. It is clear, and as it arises from submissions made by both parties, that the question of the issue of a firearms licence involves the exercise of a statutory discretion. While the consideration of this question is shaped by the relevant legislation, the exercise of such a discretion must be reasonable in all the circumstances. (MIAC v Li (2013) 24 CLR 332 at [26], [29] [63] and [88]). The reasons for the decision must logically, rationally and reasonably arise from the material before the decision maker and reveal an intellectual engagement with such material. (MIBP v SZVFW (2018) 357 ALR 408 at [84]).

13. Both parties made submissions on the meaning of certain relevant phrases found in the applicable legislative provisions: ‘reasonable cause to believe’, ‘fit and proper person’, ‘public interest’, ‘correct and preferable decision’, and their application to the current circumstances. (2AS at [39]-[51] and 1RS at [6]-[21]). I thank the parties’ legal representatives in this regard.

14. For current purposes, I specifically note the applicant’s reference to ABT v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ: The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.

15. In my respectful view therefore, the relevant context for the current matter includes the objects and purposes of the Act, which focus on public safety. The question of whether the applicant is a ‘fit and proper ‘person is not to be considered in some abstract sense, or even as a generality. It is to be considered in the context of whether the applicant is such a person in the context of the aims, requirements and objects of the Act. For the reasons that follow I find that the applicant is not such a person.

THE DELEGATE’S DECISION.

16. What is tolerably clear from the delegate’s decision record is that the applicant was refused the firearms licence because it was found that there was reasonable cause to believe, having regard to the applicant’s personal and domestic circumstances, that the applicant may not personally exercise continuous and responsible control over firearms and that the issue of a licence would be contrary to the public interest.

THE MATERIAL BEFORE THE TRIBUNAL.

17. The material before the delegate was put before the Tribunal by the respondent, pursuant to section 58 of the Administrative Decisions Review Act 1977, and variously by the applicant. For current purposes and as, albeit obliquely, referred to in the delegate’s decision record, this material involved the domestic situation of the applicant and his former wife (Ms.Bajwa) which at times required the intervention of the police, other incidents, and a charge brought against the applicant for common assault which was subsequently withdrawn.

18. The additional material before the Tribunal was the police record of the applicant’s traffic infringements and offences between 2004 and 2021, various statements by police officers, with attachments, the statement of Ms.Bajwa, the applicant’s affidavit and a number of character references provided by the applicant.

THE PARTIES’ POSITIONS.

19. In essence the respondent argues that the applicant’s history over a number of years reveals conduct where he displayed anger, aggression and other ’questionable’ incidents, and a traffic history which supports the proposition that, having regard to the relevant statutory principles, and requirements, the applicant should not be issued with a firearms licence.

20. Before the Tribunal the respondent relied on essentially two factual bases to support his position. One, the applicant’s involvement in family violence which revealed the applicant to have acted with anger and aggression which was inconsistent with conduct expected as being in the public interest and public safety. Two, the applicant’s traffic history involving repeated breaches which revealed conduct inimical to public safety.

21. The applicant’s position is that the correct and preferable decision is that the delegate’s decision should be set aside and that the applicant should be issued with a firearms licence because the matters and events relied on by the respondent can be reasonably explained, in part denied, and are of historical nature. Further, the applicant submitted that he had successfully completed firearms safety training at his local club and had a responsible attitude to firearms. (2AS at [57]).

THE FACTUAL MATRIX: THE DOMESTIC SITUATION.

22. As set out above the delegate relied on a number of domestic or family violence incidents to refuse the issue of a licence to the applicant. Given the lack of detail in, and the opaque nature of, the delegate’s decision record it is not clear what particular incidents, or version of events, the delegate relied upon. Nonetheless the following is contained in the material put before the Tribunal.

A. The September 2015 Incident.

23. There was no dispute between the parties that on 8 September 2015 the applicant and Ms.Bajwa had a verbal argument which escalated and became physical.

24. Beyond this the accounts of relevant events as between the applicant and Ms.Bajwa diverged. Ms.Bajwa asserted that the applicant grabbed her hand, scratched her arm, twisted her arm behind her back and marched her out of the bathroom forcing her to walk backwards. She also alleged that the applicant made a choking motion toward her.

25. In his evidence the applicant denied that he twisted her arm or made a choking motion. He accepted that he swatted her arm away while she was pointing at his face. His evidence was that he was not angry during this incident, but confused.

26. Ms.Bajwa’s evidence before the Tribunal was that she had a good memory and a relatively good recollection of this incident. She agreed that her memory of things that were not important could fade, but I understood her evidence to be that this was not such an occasion.

27. What the applicant and Ms.Bajwa did agree upon was that the incident was initiated by the applicant’s allegation that the previous day her driving could have resulted in injury to their then 9 months old daughter.

28. It was not in dispute that Ms. Bajwa called the 000 emergency number and the police subsequently attended. The applicant was issued with an Apprehended Domestic Violence Order (‘ADVO’) and charged with common assault on 8 September 2015.

29. The applicant’s evidence was that at the hearing of the ADVO and the assault charge on 1 December 2015 before the Local Court the prosecutor withdrew the charge and the application for a final ADVO. Ms.Bajwa did not attend at this hearing.

30. Ms.Bajwa’s evidence before the Tribunal was that there were various reasons for her failure to attend. These included that she did not receive any notice to attend, was told by a lawyer that she did not need to attend, was pressured by her parents to reconcile with the applicant and that the applicant pressured her not to attend. The implication arising from this was that her failure to attend caused the withdrawal of the charges, not that she had falsely reported the matter to the police.

31. For reasons set out below I accept Ms Bajwa’s account of this incident. For immediate purposes however, whatever the detail of what occurred in this incident, what remains is that the applicant accepted that he ‘swatted’ Ms.Bajwa’s hand away. There was no dispute that the incident was initiated by his allegation concerning her driving and their daughter. The charge of assault and the withdrawal of the ADVO occurred in circumstances where Ms Bajwa did not attend at court.

B. The 17 May 2016 Incident.

32. In his evidence the applicant stated that on 17 May 2016 Ms.Bajwa became aggressive and abusive towards him following his refusal to give her access to a ‘work’ credit card. He stated that she was verbally abusive, pushed him and grabbed his shirt as he tried to walk away. He said that he filed a report to police, but advised them not to press charges because Ms.Bajwa was pregnant. He stated that the police agreed not to press charges but made a note of his report. (The applicant’s affidavit of 13 October 2021 at [29]).

33. In his statement to the Tribunal Senior Constable Jason Van Den Berg stated that he had seen the applicant’s affidavit filed in this matter, read this allegation, and made a search of relevant police records, which in an abundance of caution, included a search for 17 May in both 2015 and 2017. He found no record of it. (Statement of 7 November 2021 at [21], Respondent’s Exhibit 3).

C. The 12 July 2017 Incident.

34. Having earlier separated the applicant and Ms.Bajwa reconciled in January 2016. On 12 July 2017 the applicant and Ms.Bajwa had a verbal disagreement about her attending Yoga classes during feeding time for their children. On the applicant’s account Ms.Bajwa slapped and punched him. He complained to police. She was subsequently charged and convicted of common assault. Ms.Bajwa did not deny slapping the applicant, but did deny punching him. She was convicted of assault on the basis of the slap. The Local Court did not make any finding in relation to the alleged punch. ( See the transcript of the Local Court hearing on 30 August 2017 at page 29, lines 34-43, Annexure BK-2 to the applicant’s affidavit of 16 November 2021).

35. For current purposes however I note that during these proceedings it was put to the applicant, on behalf of Ms.Bajwa, that he had pushed her into a sliding door and said that he would kill her. He replied that he could not recall saying this, but in the past, during arguments, both had made such statements in the heat of the moment. (See the transcript of the Local Court hearing on 30 August 2017 at page 17, lines 38-46 and see [81] of this decision).

D. The 5 October 2017 Incident.

36. Ms.Bajwa’s evidence is that on 5 October 2017 (she and the applicant had been separated for some time) during a conversation via Skype words to the following effect were said (See Ms. Bajwa’s statement of 10 November 2021 at [16], Respondent’s Exhibit 4):

Billal Khan: I want to see the kids, I’m going a bit crazy, it’s like I’m dying. If I don’t see the girls, I’ll do something everyone will regret.

Sadiqa Bajwa: Are you threatening me?

Billal Khan: No, this is just the way I’m at, my state of mind at the moment. You would have no idea what it feels like not to see the girls.

37. Ms.Bajwa’s evidence was that she was concerned about her, and her daughters’, safety following this statement. She reported this to police and gave a statement to them.

38. Senior Constable Van Den Berg’s statement provided in this matter reports that he and other police attended the applicant at his home and spoke to him. A statement, annexed to his initial statement records that on 5 October 2017 he saw a ‘log’ on Ms.Bajwa’s Skype account which depicted the call log between Ms.Bajwa and a ‘Dr Billy Khan’. He also saw a text message on her mobile phone, dated 10 September 2017 from ‘Billal’ which stated: Aliya is with me until we sort out kids visitation. (Annexure A to the statement of SC Van Den Berg of 7 November 2021, Respondent’s Exhibit 5).

39. His statement further reports that he held fears for Ms.Bajwa’s safety and therefore prepared an interim ADVO, which was subsequently served on the applicant. The hearing for the ADVO was listed for 15 December 2017. In the meantime on 28 November 2017 the applicant’s solicitors requested that the ADVO be withdrawn. This was supported by a statement from the applicant and seven character references for him. (Statement of SC Van Den Berg of 7 November 2021 at [14]).

40. Senior Constable Van Den Berg spoke to Ms.Bajwa and to other police officers who had spoken to the applicant, and formed the view that ‘at that time the matter was a family law dispute’ and that the ‘core issues’ between the applicant and Ms.Bajwa arose from ‘custody and parenting issues which were progressing and being resolved.’ He therefore determined that the ADVO was no longer necessary. (SC Van Den Berg statement at [17]).

41. 41. However, in his statement he also said:

At the time of making the above assessment, the Applicant did not have a firearms licence nor did he have access to firearms. If the Applicant had a firearms licence in October to December 2017, I would not have supported withdrawing the ADVO. Based on my experience in the NSW Police Force, I believe that if the Applicant did possess a firearm licence, the comments made by the Applicant on 5 October 2017 would have caused me concern including in the context of escalating domestic violence incidents. (Statement of SC Van Den Berg at [18]).

E. The 21 March 2020 Incident.

42. The applicant and Ms.Bajwa divorced in 2018. Ms.Bajwa alleges that during an ‘exchange of custody’ of their children the applicant called her a ‘slut’. She reported this to police.

43. In his affidavit of 16 November 2021 the applicant’s evidence was that this conversation never happened. He said (at [18]-[19]):

I deny that on 21 March 2021, during a handover of the children, [Ms.Bajwa] and I had a conversation as follows:

Sadiqa: [what did you say?

Me: [s]lut

as this conversation never happened, and is therefore untrue.

In the premise of paragraph 18 herein, Sadiqa recorded this handover, and produced a copy of this recording to my previous legal advisors. The conversation referred to in paragraph 18 herein cannot be heard, and I cannot be heard saying “slut”.

44. In cross examination during the hearing of this matter the applicant stated that he ‘slightly’ heard Ms.Bajwa say: ‘What did you say?’, but he walked away. He initially denied that he might have mumbled an expletive under his breath. The applicant subsequently accepted that his lawyer could have subsequently ‘possibly written’ to Ms.Bajwa that he ‘…may have mumbled an expletive under his breath’.

45. When this inconsistency was put to him, the applicant said that he may have sworn, but did not use the word ‘slut’.

THE FACTUAL MATRIX: THE APPLICANT’S TRAFFIC RECORD.

46. The respondent put the applicant’s traffic record before the Tribunal. This reveals that between 2004 and 2021 the applicant had 15 traffic infringements. This record of infringements included 13 speeding offences, an ‘extreme speed offence’ in 2009 which resulted in a six months’ suspension of his driving licence ‘on the grounds of not a fit and proper person in view of recorded offences..’, and twice using a mobile phone while driving. (Respondent’s Exhibit 6).

47. In his affidavit of 16 November 2021 the applicant relevantly stated:

37 I have fifteen (15) traffic infringements/offences between the period from 2004 to 2020.

38 I accept that the traffic infringements/ offences are somewhat protracted insofar that they date back to 2004; however, a large majority of the above-mentioned traffic infringements/offences were committed in 2004-2006, 2008-2010, and 2015.

39 In the premise of paragraph 38 herein, some of these traffic infringements offences were not committed by me.

40 Previously I was a director of Ultimate Car Club (“UCC”). UCC possessed approx. ten (10) high powered sports vehicles, and members of UCC would drive these vehicles. Unfortunately, there were a few occasions where we failed to correctly log members driving vehicles, which in turn, meant that we could not accurately identify who the driver was of the vehicles when we received infringement notices; accordingly, I as director had to accept these infringement/ offences. After this, we started logging these details correctly.

41. Nonetheless, I have accepted the penalties associated with the commission of these traffic infringements/ offers, [sic:offences] and do not offer an excuse for them. I accept total responsibility.

48. The applicant’s evidence during cross examination was that UCC had at least four high powered luxury cars worth about $1.1m, and that the average membership fee was about $25,000 per annum. He agreed that the reference to ‘director’ in his affidavit was to his being a director of UCC.

49. He was cross examined as to the traffic record. He stated that about 2 or 3 of the times he was fined for traffic infringements, including the excessive speeding offence, he was not driving the relevant vehicles, and as he had stated in his affidavit, they were committed by other members during the time of the operation of the UCC and that because of lax record keeping the specific drivers could not be identified and he therefore accepted the infringement notices as he was the director of UCC.

50. He subsequently acknowledged in cross examination that UCC operated from November 2011 to about 2012/2013. In that circumstance therefore the offences in 2009, 2010 and September 2014 occurred when UCC was not operating. The excessive speed matter which resulted in the temporary withdrawal of his driver licence occurred in 2009.

51. When this was put to him the applicant then gave evidence that the UCC had also existed under different ‘brands’ and that he had not committed this offence. In relation to one of the fines he was not a director but a ‘manager’. The applicant did not give a satisfactory explanation as to why his otherwise detailed affidavit was silent as to these other brands, the temporal extent of the car club operation, and his earlier role as manager. Nor did he seek to subsequently explain why he accepted the fine at that earlier time if he was the manager and not the director of whatever entity the car club operated as at that time. Nor was any subsequent attempt made to provide any documentary corroborative evidence of the existence of these other ‘brands’.

52. What remains is that he has an extensive traffic offence history. His evidence under cross examination contradicted some of his affidavit evidence and revealed some of the affidavit evidence in this regard as an attempt to mislead as to the commission of the offences.

THE FACTUAL MATRIX: OTHER INCIDENTS.

53. The material before the Tribunal reveals that on 27 June 2008 the applicant was involved in a dispute with a female neighbour and the applicant’s parents which caused the neighbour to call 000 and request police assistance in relation to the applicant. (Respondent’s Exhibit 5).

54. Further, on 28 March 2020 the applicant and his current wife (clearly not Ms.Bajwa) had a verbal argument which resulted in her contacting police, through calling 000, as she felt intimidated by the applicant. The police attended. No further action was taken as both parties appeared calm at that time. (Statement of Constable Benjamin Felettigh of 7 November 2021. Respondent’s Exhibit 2).

MS.BAJWA’S MENTAL HEALTH.

55. In his affidavit of 16 November 2021 the applicant made various references to Ms.Bajwa’s mental health during the time of their marital relationship. (See especially at [24]-[28]). It would appear that from what is stated that this was an attempt on the applicant’s part to assert that Ms.Bajwa’s allegations against him were in effect the result of her mental health condition, and not due to any conduct on his part. This was not satisfactorily explained in submissions settled by his legal representatives.

THE APPLICANT’S CHARACTER REFERENCES.

56. The applicant provided 5 references from third parties which sought to address aspects of his character. (Applicant’s Exhibits 1 to 5). The specific purpose for providing these references was not made entirely clear in submissions. In 1AS the applicant submits that the references show that he now has a ‘sound support network’. (1AS at [41]). It is not explained how that directly assisted the applicant’s case now in light of the other material before the Tribunal. In 2AS the applicant submits that the references are from persons who have known the applicant for some time. They ‘attest to him being a courteous, responsible, mature and trustworthy person’. He asks that their ‘evidence’ should be accepted. (2AS at [10]).

57. In the same submissions the applicant cautions the Tribunal to be ‘conscious’ that aspects of various documents provided by the respondent (including the COPS records) ‘contain unsworn hearsay evidence about conduct and words allegedly said’ by the applicant and Ms.Bajwa and therefore ‘should not be preferred to the testimony of witnesses who were present’ when the incidents in question occurred. (2AS at [15]).

58. If then the purpose of the provision of the references was to assist the applicant in relation to his version of events, then the similar caution urged by the applicant should be applied. That is, there is nothing in the references to indicate that the referees were present at any of the family dispute incidents or were members, or had direct knowledge, of the UCC and the applicant’s traffic offence history. For example, none say that they were the driver of the car at the time of the occurrence of the traffic infringements which were attributed to the applicant.

59. In short, I agree with the respondent’s submission that the references are of little utility in relation to answering the questions posed for the Tribunal in this matter. I accept that the applicant has people who are now prepared to come forward and speak well on his behalf. What they personally think of the Commissioner’s decision is, with respect to them, of no direct assistance in the disposition of the application made to the Tribunal, particularly as there is nothing to indicate that any of them are in possession, or have actual knowledge of, the full range of the material before the Tribunal.

CONSIDERATION.

60. It is the case, as the applicant submits, that he has no criminal record either involving firearms or anything else. Nor is there any evidence of mental illness or drug or alcohol dependency. (2AS at [53]). However, I agree with the respondent that the question for determination revolves around the applicant’s conduct, not necessarily the absence of a criminal record. (See EMB v Commissioner of Police [2020] NSW CATAD 255 at [16] and the reference there to Joseph v Commissioner of Police,New South Wales Police Force [2017] NSWCAT 31 at [62]-[64]).

61. The applicant’s evidence and submissions have sought to present Ms.Bajwa in an unfavourable light. The assertions include that during the period 2015-2017 she had, and given she continuous to see a psychiatrist continues to have, mental health issues. Her presentation before the Tribunal was said to, at times, be committed to airing her own personal grievances rather than responding to the questions put to her.

62. Her conduct during the period of marital difficulties was portrayed as being aggressive, on occasion violent, and even manipulative. For example, Ms.Bajwa’s contacting the police in relation to the 21 March 2020 incident, was described as: ‘As is her way…’. (See 2AS at [32]). The assertion generally was that she was an unreliable witness.

63. In short, the implication is that the events of 2015-2017 were at the instigation of Ms.Bajwa given her claimed mental health issues, and that the applicant’s conduct, on his preferred version of events, said nothing to support the proposition that he should not be issued a firearms licence.

64. I do not agree with the applicant’s characterisation of Ms.Bajwa’s evidence. It is to be remembered that the period 2015-2017 was stressful for both the applicant and Ms.Bajwa. The marital disharmony that eventually led to the breakdown of their marriage was difficult for both.

65. Before the Tribunal Ms.Bajwa presented her evidence, and her account of events, in a manner consistent with the continued impact of the turmoil of a marital breakdown. While at times it may be said, as the applicant now asserts, that she sought to air her grievances, it does not follow that such grievances did not have some probative basis in those past events, or that her airing them now detracts from the credibility of what she said, or perceived to have occurred.

66. Importantly the evidence reveals that Ms.Bajwa was willing to accept responsibility for her conduct. For example, before the Local Court in 2017 Ms.Bajwa did not seek to hide the fact that she had slapped the applicant. This was in circumstances where the presiding Magistrate said that she was faced with two versions of what had occurred on that night which made it difficult to determine what had happened. She proceeded to find the offence of common assault proved on the basis of Ms.Bajwa’s admission. (See the transcript of the hearing before the Local Court on 30 August 2017, BK-2 to the applicant’s affidavit of 16 November 2021).

67. This is to be contrasted with the applicant’s presentation before the Tribunal where he denied any ‘adverse’ conduct until confronted with evidence to the contrary. Even then it must be said his concessions appeared to be grudging.

68. It is clear from his evidence and submissions that the applicant seeks to discredit Ms.Bajwa’s evidence so as to support his various denials of what she alleges. This approach in the presentation of his case by his legal representatives, which on what is before me I can only presume was on the applicant’s instructions, neglects to comprehend that in the current matter it is not the conduct of Ms.Bajwa which is the central issue, but rather the applicant’s own conduct, both in the past and at present. That is, how that conduct can inform, in one way or the other, the disposition of the central question in this matter as set out above at [5]-[15] of this decision.

69. A number of matters arose during the conduct of this case that directly bear on that question. It is to be noted that that question has, in part, a future focus. That is, is the applicant a fit and proper person for the purposes of the Act and who can be trusted to have possession of a firearm without danger to public safety. Further, can it be believed that he may not personally exercise continuous and responsible control over firearms, and is the issue of the firearms licence contrary to the public interest. In this past events may inform the future.

70. First, in 1AS (noting again that the applicant’s solicitors who settled these submissions would have been acting on his instructions) the applicant states that he has a sufficient level of insight into the behaviour or actions which were the subject of the ‘withdrawn’ common assault charge and the applications for ADVO’s. (The September 2015 Incident). The submissions state that he agrees that no one should be subjected to the actions and behaviour which were the subject of the complaint. (1AS at [29]).

71. In the next paragraph of the submissions the applicant denies that very same behaviour and conduct. In seeming contrast the applicant then submits that the triggers ‘during the alleged commission of the offence of common assault, and the applications for apprehended violence orders (although denied)’ were the emotional, mental, and financial pressures involved, which led to and/or ‘triggered’ the events which were the subject of the complaint. (1AS at [30]).

72. It is tolerably clear, given what is set out at [29]-[32] of 1AS, that the applicant, while denying the conduct which was the subject of the complaint against him, at the same time is seeking to argue that he now has insight into the harm caused by such conduct.

73. The question that immediately arises is that if this conduct is denied, that is, it did not occur in the way alleged by Ms.Bajwa, then what is the subject matter that gave rise to the claimed insight.

74. It must be said that what remains of this is that the applicant has demonstrated a willingness in these proceedings to argue what he thinks will advance his cause, without basis for doing so.

75. Second, as set out above (at [42]-[45] of this decision) in his affidavit of 16 November 2021, (the 21 March 2020 Incident) the applicant denied calling Ms.Bajwa a ‘slut’. The applicant’s oral evidence before the Tribunal was inconsistent with what he had previously affirmed to be true in his affidavit.

76. It is trite to say that an affirmation to tell the truth should be taken seriously. At the time of making that affidavit the applicant must be taken to have known what his lawyers, relevantly, had previously written to Ms.Bajwa about this incident. What is set out above at [42]-[45] of this decision reveals the applicant’s propensity, even when he has affirmed the truth of what he says, to say what he believes is of benefit to him at the time. A reasonable inference arises that the applicant was negligent, or even indifferent, as to the truth of this matter.

77. Third, in 2AS the applicant, on two occasions (at [4] and [54]) describes the ‘domestic disputes’ as ‘relatively trivial’. I do not agree with this description. Domestic, or family violence, whether physical, emotional or psychological, is a serious issue. Further, on the evidence both the applicant and Ms.Bajwa called police on various occasions. The applicant’s submission in this regard is inconsistent with his own conduct in calling police at the time of the 12 July 2017 incident.

78. It is difficult to accept that the applicant would have called police for a ‘trivial’ incident, particularly as the evidence put before the Tribunal by the applicant himself is that he called police nearly two and a half hours after the incident after first having called the applicant’s brother to come and take Ms.Bajwa away. That is, the police were called after a period of time which allowed for reflection on the part of the applicant. (See the transcript of the Local Court hearing, BK-2 to the applicant’s affidavit of 16 November 2021, at page 12, lines 29-34, page 15, lines 5-11, page 18, lines 32-33, page 19 at lines 6-7 and page 20, lines 11-12).

79. It may be that the applicant’s submissions sought to distinguish between physical violence leading to serious bodily harm from violence where little physical harm has occurred. This of course fails to understand that the emotional and psychological impact of such violence can be profound. Ms.Bajwa’s evidence before the Tribunal was clear on this that her life was ‘more peaceful’ now that she had nothing to do with the applicant.

80. In light of this submission, and otherwise the applicant’s evidence before the Tribunal that in part he displayed anger and aggression to some level, leads to the concern that the applicant lacks insight that anger and aggression in a domestic and public context is inappropriate behaviour. This sits as an example of his failure to understand that conduct involving anger and aggression, for example in a domestic setting, is inimical to the holding of a firearm licence.

81. Fourth, as set out above the applicant gave evidence in Local Court proceedings in relation to the 12 July 2017 incident. The transcript of his evidence which he put before the Tribunal reveals that while he rejected the proposition put to him that he told Ms.Bajwa ‘I will kill you’, he stated that he and Ms.Bajwa had said ‘stuff like that to each other … in the heat of the moment.’ (See transcript of the Local Court hearing at page 17, lines 38-42 and see [35] of this decision).

82. In cross examination before the Tribunal the applicant gave contradictory evidence in denying that he or Ms.Bajwa would ever say anything like this. That contradiction remains without satisfactory explanation. What it does illustrate is a propensity on the applicant’s part to say what he believes to be to his advantage in any given situation.

83. Fifth, as set out above, in the presentation of his case the applicant made reference to what he said were Ms.Bajwa’s psychological problems. The relevance of this to the issues in the current review was not made clear. At best it appears that this was an attempt by the applicant to discredit Ms.Bajwa’s evidence and her account of the incidents during the marital breakdown, including her reports to police.

84. Ms.Bajwa’s evidence to the Tribunal was that she was aware that since the end of the marriage in 2017, the applicant asserted that she had mental health issues. She acknowledged that she had been diagnosed with Persistent Complex Bereavement Disorder by a Family Court appointed psychologist during proceedings before that Court. A subsequent assessment by the same psychologist diagnosed her as having Paranoia. This subsequent assessment was made without conducting a relevant personal assessment of her. (See Ms. Bajwa’s statement at [28]-]29]). The actual reports by the initial psychologist were not put before the Tribunal. It is difficult therefore to assess the value of this to the current proceedings.

85. However, Ms.Bajwa also referred to a number of other health professionals, three psychiatrists including a Court appointed psychiatrist in early 2020, none of whom diagnosed her with any mental health conditions. (Statement of Ms. Bajwa at [27], [30]-[33]). This was not challenged by the applicant. On what is before the Tribunal I prefer the weight of these latter assessments in this regard. In any event there is nothing from the psychologist’s assessment to find that these conditions, even if they did exist, affected Ms.Bajwa’s capacity now to give a truthful account of the claimed incidents.

86. For the sake of completeness, given the state of the evidence, I place no weight on this assertion by the applicant in considering the various accounts of the incidents set out above. It does however lend weight to the finding as to the applicant’s propensity to say and do what he believes to be to his advantage without disclosing all of the relevant facts.

87. Sixth, I do not accept the applicant’s account of the incident of 21 March 2020. Given what is set out immediately above, and further the inconsistency between the contents of the earlier letter from his solicitors and his evidence in his affidavit of 16 November 2021, I find that this is another relevant example of the applicant’s disposition in making self serving and incorrect statements when it is to his perceived advantage to do so. This is a matter that goes to his conduct, the credibility of his account of past events and a reflection of his demonstrated inability or unwillingness to accept responsibility for his own actions and conduct.

88. Seventh, in his submissions the applicant emphasises that whatever happened during the time of the marital breakdown, the ending of that relationship means that the matters relied on by the respondent now are historical and no longer relevant to the disposition of the current issue.

89. In his affidavit of 13 October 2021(at [35]) the applicant states that he has ‘…now repaired my relationship with’ Ms.Bajwa. In his affidavit of 16 November 2021 the applicant states (at [29]) that he and Ms.Bajwa now have ‘an amicable relationship’. In 1AS (at [10.e]) the applicant, through his solicitors states that he has an ‘amicable relationship’ with Ms.Bajwa and the circumstances that led to the issue of ADVO’s are unlikely to be repeated. The applicant makes no specific reference to this in 2AS.

60. In her statement to the Tribunal Ms.Bajwa states (at [34]): I do not currently have any relationship with the Applicant. Our only interactions are based on our daughters. All communication regarding our daughters occurs via email or messages.

61. Other than in the exercise of the parenting responsibilities for their children, there is nothing before the Tribunal to explain the basis for the applicant’s claim that he and Ms.Bajwa have an ‘amicable’ relationship. In the circumstances I accept Ms.Bajwa’s evidence in this regard.

62. In any event as set out above the applicant’s past conduct can inform his fitness and the appropriateness of his holding a firearms licence. The issue now is not necessarily how the applicant would conduct himself in a stressful marital situation, but how he would conduct himself in any stressful situation.

63. Ninth, the matter of the traffic infringements and the applicant’s relevant presentation before the Tribunal gives rise to similar concerns as those set out immediately above. The applicant has a substantial traffic record. His approach before the Tribunal was in part to seek to shift responsibility to others. Given the evidence, and as set out above, this was unsuccessful.

64. But even if other persons were responsible for some of the offences, which on the evidence as set out above I do not accept, the applicant as director of UCC should have taken steps to ensure a proper system of record keeping to be able to identify the driver of any of the vehicles. After all, on the applicant’s own evidence, these were high end expensive cars which would have incurred significant cost for any repairs if they had been damaged. At the very least, once the applicant, on his account, had received the first infringement notice which he now claims was the fault of another driver he should at that point instigated a proper records keeping system. That would have been the responsible thing to do.

65. Further, and in another sense, it does not matter whether the driver on those occasions was the applicant or someone else. On the evidence the vehicles involved were high performance vehicles which if driven at speed on public roads would pose a significant risk to public safety. There is no satisfactory evidence to indicate that the applicant instituted any control over the use of the luxury cars to ensure safety while driven by club members. It is not an exaggeration to say that any vehicle driven at speed, let alone a high performance vehicle, is a dangerous weapon. I use that word advisedly. As is said ‘speed kills’, so too a firearm in inappropriate hands.

66. I agree with the respondent’s submissions that repeated breaches of traffic laws over a long period of time, as in the applicant’s case, are relevant to the disposition of the current matter. Both the traffic laws and the firearms provisions are directly concerned with the aim of ensuring public safety. The applicant’s conduct is such that it displays ongoing recklessness and a failure to accept responsibility consistent with a proper regard for public safety.

67. In his affidavit of 13 October 2021 (at 16]) the applicant stated that if the application for the firearms licence is refused this would:…adversely affect me emotionally, and mentally, particularly given the current climate of COVID-19 (and the restrictions that have and continue to be in place in NSW. This is repeated in his subsequent affidavit of 16 November 2021 (at [5]), and in 1AS (at [40]).

68. I accept that the applicant would be greatly disappointed if the licence refusal were to be maintained, and this may even cause emotional turmoil. However on the applicant’s evidence his interest in pistol shooting is recently acquired. His evidence is that for him this is a ‘recreational’ activity. (See the applicant’s affidavit of 13 October 2021 at [16]). This is not a case, for example, where the firearm licence is required for any occupational or professional use.

69. Given the unambiguous and clear emphasis in the Act on public safety and the understanding that the issuing of a firearm licence is a privilege and not a right, there is nothing in the circumstances presented to argue that the applicant’s personal interest should outweigh the public interest.

CONCLUSION.

100. In all therefore, rather than to accept responsibility for his part in the domestic incidents, his indifference to public safety in repeatedly beaching traffic laws, and for his failure to appropriately and responsibly ensure the imposition of proper monitoring systems in relation to the car club operation, the applicant elected to apportion blame on to others, deny any wrong doing unless confronted with evidence to the contrary, and failed to display any real understanding, or insight, of the importance of accepting responsibility for his own conduct when it is appropriate to do so.

101. It is this failure to genuinely accept responsibility that renders the applicant unfit to hold a firearms licence. It reveals that the public interest is best served by reserving the privilege to hold a firearm licence to those who have insight into their own conduct and character and who are able, let alone prepared, to act responsibly with what are after all dangerous weapons.

102. In all the circumstances therefore the correct and preferable decision is to affirm the Commissioner’s decision to refuse to issue the firearms licence to the applicant.

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: 14 January 2022