Kraus v Commissioner of Police

[2020] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kraus v Commissioner of Police [2020] NSWCATAD 152
Hearing dates:	4 June 2020
Date of orders:	17 June 2020
Decision date:	17 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof GD Walker, Senior Member
Decision:	(1)   Decision under review set aside. (2)   A category AB firearms licence is to be issued to the applicant. (3)   Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and the paragraphs in these reasons marked “[Not for publication]” are not to be published.
Catchwords:	LICENSING – firearms – revocation of licence – contraventions of Act and Regulation – magistrate’s power to dismiss charges under mental health legislation – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Police Act 1990 (NSW)
Category:	Principal judgment
Parties:	Philip D Kraus (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Mainstone Lawyers (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2019/00108663
Publication restriction:	Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and the contents of paragraphs of these reasons marked “Not for publication” are not to be published.

reasons for decision

1. The applicant Mr Philip Kraus on 8 April 2019 applied to this tribunal for review of a decision made by a delegate of the respondent on 12 March 2019 to revoke his category AB firearms licence.

2. Aged 49, the applicant is a senior sergeant in the New South Wales Police Force, having served as a police officer since 1989, and is married with three children. He has also been a member of the Australian Army (Reserves) for over 11 years, currently holding the rank of sergeant. He was first issued with a category AB licence in 1989 for the reason of recreational hunting and vermin control and renewed it as required until it was revoked on 10 October 2018, the revocation being affirmed following an internal review on 12 March 2019.

3. On 16 November 2016 police senior management made a decision to remove access to his police issue firearm after concerns were expressed about his state of mental health. On the same day, police attended his Cranebrook residence to suspend his personal firearms licence and take possession of his registered firearms. They formed the impression that he was seeking to delay them entry for that purpose. After about 20 minutes, he led police to a shed at the rear of the property and spoke in the direction of the shed saying, “You can come out now, they are here”, and “Come out now”.

4. The police reported that on entering the shed, they saw the applicant’s son, Daniel Kraus (then aged 17), standing at the gun safe with the upper compartment containing ammunition open, while holding the locking handle for it. The lower compartment housing the applicant’s registered firearms was closed, but a set of keys was in the lock. At the time, Daniel Kraus was not licensed or authorized for firearms or ammunition.

5. Police located 251 rounds of .38 Special revolver ammunition and 60 rounds of .40 Smith & Wesson pistol ammunition in the firearms safe. The applicant did not hold a category H firearms licence. Police seized 10 registered firearms but did not locate a Hungarian .177 air rifle. When asked about it, the applicant said the airgun was on loan to a friend, Aaron Donohue. Enquiries ascertained that Mr Donohue did not have it, and said that he had borrowed it from the applicant in 2009 and possibly returned it in 2011. The applicant reported the airgun lost on 24 November 2016 and to date it has not been located.

6. On 23 July 2018, the applicant appeared before Penrith Local Court on three charges, failing to prevent the theft or loss of a firearm, allowing an unauthorized person to possess the firearm and possessing ammunition without holding a licence, permit or authority. The charges were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 and the applicant was discharged into care subject to continued psychological counselling, attending a stress management course and taking two or more self-development courses. He lodged internal complaints relating to the police handling of the charges and the surrounding circumstances, which were partly upheld following an internal departmental investigation into the grievance issues.

Applicable legislation

7. Section 24 of the Firearms Act governs the revocation of firearms licences. Section 24(2) provides:

(2)   A licence may be revoked—

(a)   for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b)   if the licensee—

(i)   supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii)   contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii)   contravenes any condition of the licence, or

(c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1)   if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

(d)   for any other reason prescribed by the regulations.

8. Pursuant to s 24(2)(d), cl 20 of the Firearms Regulation 2017 provides that “the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence”.

9. The general requirement for the safekeeping of firearms is set out in s 39 of the Firearms Act, which relevantly provides:

39   General requirement

(1)   A person who possesses a firearm must take all reasonable precautions to ensure—

(a)   its safe keeping, and

(b)   that it is not stolen or lost, and

(c)   that it does not come into the possession of a person who is not authorised to possess the firearm.

10. Also relevant in this case is s 32 of the Mental Health (Forensic Provisions) Act 1990, which states in pertinent part:

32   Persons suffering from mental illness or condition or cognitive impairment

(1)   If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a)   that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i)   cognitively impaired, or

(ii)   suffering from mental illness, or

(iii)   suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b)   that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2)   The Magistrate may do any one or more of the following:

(a)   adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013,

(c)   make any other order that the Magistrate considers appropriate.

(3)   The Magistrate may make an order dismissing the charge and discharge the defendant:

(a)   into the care of a responsible person, unconditionally or subject to conditions, or

(b)   on the condition that the defendant attend on a person or at a place specified by the Magistrate:

(i)   for assessment or treatment (or both) of the defendant’s mental condition or cognitive impairment, or

(ii)   to enable the provision of support in relation to the defendant’s cognitive impairment, or

(c)   unconditionally.

11. The issue in this application is whether the correct and preferable decision is to affirm the revocation of the applicant’s firearms licence by reason of his having contravened one or more provisions of the Act or Regulation, or because it is not in the public interest for him to continue to hold a licence, or both. There is no issue as to whether the applicant is a fit and proper person to continue to hold the licence.

The evidence

12. The respondent called no oral evidence but relied on documentary material, including the s 58 documents (exhibits R1 and R2) and the cross-examination of Mr Kraus.

The applicant – Mr Philip Kraus

13. The applicant relied on his statement dated 3 February 2020 (part exhibit A2) in which he said that from 16 November 2016 he took leave from work on medical grounds, returning in about August 2017 on a medically restricted basis to work in the security vetting unit. Besides processing applications for security clearances by police employees and contractors, that unit handled applications by retired police officers for official retired police officer badges. He dealt with many such applications, noting a number of times that there had been event reports on retired officers in which members had found a quantity of service ammunition at home after they had retired, and later handed it in to police.

14. Later he was asked to work at Strike Force Raptor from December 2017 to December 2018, first in intelligence and then as the crime coordinator for Detective Chief Inspector David Adney and Detective Superintendent Deborah Wallace. After spending a further six months with the state intelligence command, he took military leave from the police and began working at the Australian Defence Force’s Special Operations Training and Education Centre (SOTEC), where his commanding officer was Lt Anthony De Bijl.

15. He was asked to stay on longer at SOTEC, but Detective Superintendent Joseph and other senior officers opposed the extension of his military leave and he returned to policing duties on 30 September 2019. He performed a live pistol shoot on 3 October 2019 and active armed offender training on 4 October. On 9 October 2019 he was issued with a new police firearm and other “appointments” (meaning equipment including pistol, ammunition, handcuffs etc.). The following day DCI Adney asked him to work in the fugitive team at Strike Force Raptor as a fully operational member, which he did. The duties of the fugitive team involved the targeting of Outlaw Motorcycle Gang (OMCG) members, organized criminal groups and firearms and drug matters. His section specifically worked on tracking down fugitives, which involved a number of overnight trips to the country, necessitating remote storage of police firearms.

16. As part of his induction there, it was apparent that he needed to take and store his police firearm at home because of starting and finishing requirements in the field. D/Supt Wallace approved his application to store his police firearm and other equipment at his home address in an approved safe. Starting and finishing in the field at odd hours of the day and night was regularly done by members of the fugitive team. It was standard practice for officers to store their firearms at home when required.

17. On 28 October 2019, he was served with a Region Commander’s Warning (s 173 non-reviewable action) by Assistant Commissioner Walton relating to the private firearms matters arising from 16 November 2016. After that meeting, D/Supt Joseph expressed reticence about his taking his police firearm home given the ongoing NCAT matter about his personal firearms licence. Although aware of that officer’s reluctance, DCI Adney said he did not have an issue with the applicant’s continuing to store his police firearm at home as needed. D/Supt Wallace rejected a management request to revoke her permission for him to store his firearm at home. On 15 November 2019, D/Supt Joseph moved him from Strike Force Raptor to Mount Druitt Police Area Command as a general duties supervisor at short notice, which gave him no opportunity to make family arrangements.

18. He subsequently learned that no arrangements had been made with Mount Druitt to take him at that time and he therefore continued to work at the fugitive team. He lodged a further request for permission to store his firearm at home but was informed that additional requirements would need to be satisfied, including that on every occasion a firearm was to be stored at home or location other than the regular workplace, prior written permission would be required. That was an unworkable position for him to comply with and made working at the fugitive team very difficult, with starting and finishing in the field sometimes at 1 a.m. or later, especially if they incurred unexpected overtime.

19. On 5 December 2019, D/Supt Joseph informed him that he was starting work at Blacktown the following Monday, 9 December. That was short notice and left insufficient time to make arrangements with his family for the change of duty times and subsequent significantly different shifts. Through the Police Association he lodged a dispute notice about the short notice transfer and change of duty type. Subsequently he was able to make suitable family care arrangements and volunteered to begin working at Blacktown on 16 December as a general duties supervisor.

20. D/Supt Wallace retired in mid-December and the applicant was asked to take possession of her firearm and equipment, and those of another officer. He conveyed them to the police armoury without incident.

21. He had lodged a complaint for trespass and untruthfulness on the part of Supt B**** and Insp G****. An investigator from the professional standards command informed him in November 2019 that the investigation of the matter had been completed and the case had been sent back for adjudication. He confirmed that the applicant had not been served with the firearms suspension notice, as he had claimed. The investigator suggested that he contact the professional standards manager. On 18 November 2019, he emailed the professional standards manager seeking a copy of the result of the findings from the investigation. Within half an hour he received a response directing him to supply information about who he had spoken to, as the professional standards manager was now considering whether he had committed an offence with his enquiries. He was also told that the matter was not yet finished, and that he would be told when it was.

22. About 6 December 2019 he received a one-page copy of the result of his complaint. It notified him that the difference in statements of Insp G****and the execution of the service of suspension notice had been investigated. The allegation of perjury against Insp G****was not sustained, but the issue of unprofessional behaviour was sustained. The investigation in respect of Supt B****was declined. Except for a brief conversation with the investigator, he had not been consulted, nor given the reasons for the findings or of any penalty, which was contrary to practice notes.

23. Since working at Blacktown Police Area Command as a fully operational uniformed shift supervisor, his duties include managing the station for the shift and working as an outside supervisor and supervising the car crews in the field. In November 2019 he was promoted in the army reserves to the rank of troop sergeant with the 1st/5th Royal New South Wales Lancers.

24. The applicant also relied on a later statement dated 3 April 2020 (part exhibit A2), in which he stated that when he began working at Strike Force Raptor, he ensured that he personally informed D/Supt Wallace and DCI Adney of the circumstance that he had charges against him for firearms offences that had been dealt with under mental health legislation. He also informed DCI Adney of the police disciplinary matters he was facing and also that he had the present application before this tribunal because his personal firearms licence had been revoked and he was disputing that. After he had received the Commander’s Warning Notice at the counter-terrorism command, he returned to his workplace at Strike Force Raptor, informing them of the result and providing D/Supt Wallace with a copy of the notice, which she read.

25. There could be no suggestion that D/Supt Wallace did not know about the charges or disciplinary proceedings. Notwithstanding that information, she did not change her mind in relation to his storing his police equipment at home. It was shortly after that when all home storage approvals were rescinded by D/Supt Joseph.

26. In the report that he submitted through DCI Adney to D/Supt Wallace regarding permission to store his firearm at home, he relied on the second inspection report of November 2016 as it was still valid and in accordance with the policy relevant to the issue. He did not need to provide any further information in his report, as the relevant officers were aware of the circumstances.

27. The circumstances of the charges brought against him during a time of great stress in his life which caused a lapse in judgment, but was brought about to some extent by the manner of the police at the time. He had reported sick from work that day with stress. His subsequent complaint about the behaviour of Insp G**** was sustained in that it was found that he had acted in a professional manner towards the applicant.

28. He did not become aware of the loss of the airgun until police came to his residence and suspended his firearms licence and inspected his safe storage. Once that situation was clarified, the loss of the airgun was reported. He did not dispute that he had some police ammunition in his possession, but had previously provided evidence of circumstances that had arisen where police had such ammunition in their premises, particularly after retiring, with no criminal intent to do so.

29. He was remorseful about what had happened and his previous correspondence with the firearms registry showed that remorse. He had been held accountable for his actions. He was charged with a number of offences, which resulted in a Commander’s Warning on his record and a managerial transfer.

30. He is now on full operational policing duties. That means that he carries a police Glock pistol with him while on duty. In that role he has greater powers than he does in holding a personal firearms licence in that he could, where justified, use lethal force.

31. In oral evidence at the hearing, the applicant adopted the two statements and said in cross-examination that he had never been served with the suspension notice. Instead, Supt B**** had said he needed to suspend the applicant’s firearms licence, showing him the Police Notice setting out that policy and saying that he had to take all the applicant’s guns. He agreed that the air rifle had been registered to him and said he had lent it to Aaron Donohue in about 2009. He stood by his argument that as it was not in his possession at the time, he could not have done anything to prevent its loss. At the time licensees were not required to notify changes of safe storage.

32. As regards the second offence, being in possession of pistol ammunition without authorization, he believed that it lay towards the lower end of the scale of seriousness. He had not returned the .38 Special ammunition when surrendering his earlier firearm because at the time he had originally received it, it was permissible to keep it. He had purchased some of it through the Police Pistol Club and had bought some of it from a gun shop. In relation to the charge of allowing a non-licensed person to possess a firearm, he maintained that some of the allegations of fact were false and that Supt B**** had committed a trespass by entering under a false rationale.

33. The officers had not come into the shed. The applicant’s son was inside where the gun safe was. It had two compartments, and the top part where the ammunition was kept was open. The gun part was closed, but the keys were in the top lock. He had not been served with a suspension notice and had been told by the investigating officer that there was a finding against Insp G****on that point. He had been shown the Police Notice, but the officer took it back. Supt B****’s assertion that he had asked Daniel Kraus to move away from the safe and that Daniel said he could not close it was not true. He agreed that the top part of the safe was open, but said the bottom part was locked and all the keys were in the top lock. He agreed that he should not have left Daniel unattended and that Daniel had been standing by the safe. He should not have allowed that and would not do it today.

13. He had intended to plead not guilty to the three charges. In fact he had entered a plea of not guilty and the matter had been set down for hearing. He believed he had not committed an offence in relation to the loss of the airgun, but admitted the other offences, although there was a technical issue about possession. He had expressed remorse over his conduct, but pointed out that he had no other allegations of criminal behaviour against him. He believed all the respondent’s evidence formed part of a pattern of harassment against him.

14. He maintained that the police had no general right to enter on property in the manner described. Inspection of safe storage had to be by arrangement. If firearms were to be impounded there had to be service of a suspension notice. It was well known that he had not been served with a suspension notice. The notice under s 173 of the Police Act set out three allegations, which corresponded with the three charges that were brought against him. The unfair treatment he had received had had a huge impact on him, but he would do some things differently today. He had expressed remorse about his conduct.

15. In re-examination he explained that he had reported sick on the same day as the 16 November 2016 inspection and had been off work for about nine months. Then he had been posted to the security vetting unit. During that time he had been treated by the psychologist Ms Tull. He was restored to full operational duty in about May 2019 and had to carry out his annual pistol shoot. He was currently in charge of a police station for operational matters and carries a gun while on duty. His son had never been charged with any criminal offences.

Dr Matthew Jones, forensic psychiatrist

37. In the Local Court proceedings, the applicant had relied on psychiatric and psychological evidence. Those reports also formed part of his evidence in the current application. The first was a lengthy and detailed evaluation from Dr Matthew Jones, a forensic psychiatrist, dated 17 July 2018

38. In summary, Dr Jones concluded that the applicant had a significant chronic adjustment disorder with predominant anxiety symptoms. There were some post-traumatic stress symptoms as well. That condition had developed over the last two years and the applicant had sought some treatment earlier for symptoms. It continued to develop and was active and impacting Mr Kraus’s day-to-day functioning around the time of the alleged offences. He spoke of difficulties he was having at work, feeling bullied, harassed and experiencing depressed mood, anxiety, hypervigilance and problems with concentration and frustration tolerance.

39. In Dr Jones’s view, at the time of the alleged offences the applicant was experiencing an adjustment disorder with anxious and depressed mood. It was present for some time before and persisted for some time afterwards. His current status would be considered as in near remission, given his recent recovery. Neither at the time of the alleged offences, nor now [at the time of the report] would Mr Kraus be considered as having a mental illness, given the absence of specific signs and symptoms as defined in the Mental Health (Forensic Provisions) Act. He would also not be considered as being a mentally ill person under s 32 of that Act as he neither had symptoms or signs of mental illness, nor was he an acute risk to himself or others.

Ms Lynette Tull, psychologist

40. Ms Lynette Tull, registered psychologist, performed two evaluations of the applicant, the first dated 20 July 2018 (exhibit R1, pp 52-57), which began by explaining that the applicant had been referred to her for psychological counselling under the WorkCover scheme as a result of a workplace injury, dated 16 November 2016. He had been receiving psychological counselling since then and had been dealing with all issues relating to the injury. He was still attending psychological counselling on a fortnightly basis.

41. He had been suffering from a low level of post-traumatic stress disorder brought about by years of high visibility confronted policing. Nevertheless, she said that despite the PTSD he was still fully functioning mentally prior to the workplace bullying. He had given many examples of treatment that were “toxic” in nature and fitting the criteria of mobbing (bullying) behaviour on the part of his senior officers. In her professional opinion, that placed him in a chronic state of stress and severe anxiety.

42. That context of bullying he was working in, in her opinion, would lead to an individual becoming overwhelmed and unable to systematically attend to matters in a way that is characteristic of their optimal functioning. She considered that at and around the time of the commission of the alleged offence he was significantly compromised in his mental health status due to the inordinate stress he was enduring. Since the time of the firearms incident he had been attending psychological counselling, had time off work and slowly returned to work under a management plan. Now that the alleged mobbing had abated and he had addressed most of the effects of it, he had improved in his mental health status and was functioning more fully.

43. Ms Tull said that he was suffering from the effects of bullying behaviour from his seniors, which had been happening over a period, so the effects were cumulative and compounding. His symptomatology was that of adjustment disorder, which is the symptoms of PTSD without the criterion of being exposed to threat to life. From his reports and evident in his symptoms he had endured treatment that seriously undermined him and caused anxiety, fear, sleep disorder, flashbacks, hypervigilance, loss of confidence, overwhelm, sympathetic nervous system over arousal, labile emotionality, concentration difficulties, anger issues and rumination.

44. In her assessment, he displayed all the symptoms of adjustment disorder with anxiety/depression. Given the history he provided, it was evident that this mental health condition was the result of his workplace treatment. The condition had started as early as late 2015 when he felt the poor treatment towards him had commenced. Despite his mental health status at the commencement of treatment, he posed no threat to others or himself. He had strong feelings of anger and was emotionally labile but had strong behavioural regulation, which meant he would not act on his emotionality in any lethal manner, despite continuing to be exposed to provocation from the parties who created the workplace injury (at p 54). With further treatment she would provide a positive prognosis for him of full remission of his mental health condition.

45. In relation to s 32 of the Mental Health (Forensic Provisions) Act, in her assessment there was a link between his mental health condition and the circumstances surrounding the alleged offence. He was experiencing adjustment disorder and mixed anxiety/depression at the time of the alleged offences. He had reported that he had been subjected to bullying and harassment from senior management, especially Supt. B****, for a period before the alleged offence and for a period after the offence. Those incidents of bullying created psychological stress that was cumulative and compounding over a significant period before that time. In such cases their symptoms can lead to persons overlooking or not attending to matters they would usually be diligent about. That factor she considered very relevant to the alleged offence, where the usual diligence he would display was not as manifest.

46. In those circumstances, when Supt. B**** attended the applicant’s family home late in the evening to serve a notice and seize his firearms under the “welfare check” banner, his feeling was that of even his personal home was being subjected to further harassment. That was especially so when B**** had several police officers with him as well as a crew driving a caged utility. Mr Kraus felt under siege and was disturbed and angry. That incident had further traumatized him. His state of psychological distress at the time would have had a significant contribution to the firearms situation (at p 56).

47. Now that his workplace had considerably improved, Ms Tull did not see that such an event would recur in the future. His training and performance in the army as a weapons instructor had received very positive feedback and showed his capacity to attend to detail and manage situations and firearms very responsibly. “This is a clear indicator that he is more than capable of securing and responsibly handling firearms now and in the future” (at p 57). There had been no transgressions in responsible handling of firearms since the alleged offence.

48. In a report update dated 10 July 2019 (exhibit A3), Ms Tull noted that Mr Kraus was able to carry out significant responsibilities in the police and the army that clearly indicated he is functioning in a close to full capacity. As she had mentioned in her previous report, he had no mental illness and at no time would she consider him a threat to himself or others – there was no suicidal ideation or lethality in her assessment, nor any propensity to inflict harm on others. His adjustment disorder had resolved significantly and he showed very good emotional regulation and executive decision-making.

49. Before the workplace injury he had been handling and owning firearms without incident. The alleged incident was in the context of his being extremely stressed due to workplace injury and the incident related more to aberrant conditions. Mr Kraus is usually very particular and responsible, so the incident would need to be seen as outside his usual behaviour.

50. Throughout the period of his treatment, she would have had no issue with him utilizing and owning firearms, as his psychological injury would not have had any bearing on his responsible management of firearms on an ongoing basis. He required no further treatment in this matter.

Character references

51. The applicant also relied on three character references, from Lt Anthony De Bijl (exhibit A4), Major Colin Bigger and Lt Col. Scott Francis (exhibit A1, attachment B), the contents of which are outlined below.

Respondent’s submissions

52. In written submissions filed on 19 November 2019, the respondent explained the background to the case and the legal framework applying to it. He noted that the applicant appeared at Penrith Local Court on 23 July 2018 in relation to three contraventions of the Act:

1. allowing an unauthorized person to possess a licensed firearm (s 39(1)(c),

2. failing to prevent theft or loss of the licensed firearm (s 39(1)(b), and

3. possessing ammunition without holding a valid license, permit or authority (s 65(3).

53. It was also arguable that the applicant, in failing to advise the Commissioner of the change of address where his air rifle was stored within 14 days, had contravened cl 17(3) of the Regulation, although a charge against that provision was never brought. He had clearly not ensured that the air gun was not lost or stolen, as he could not locate it and had lent it to another person, failing to inform the Commissioner when he did so. Such steps, if taken, might have demonstrated a “reasonable precaution” on the part of the applicant. Further, the remainder registered to the applicant, in circumstances where he had not been in possession of it for over five years and failed to take any steps to confirm its exact location after he lent it to Aaron Donohue.

54. Those actions, or inactions, demonstrated a failure to take all reasonable precautions to ensure that the firearm was not lost or stolen, as required by s 39(1) of the Act. In addition, when police attended the applicant’s residence on 16 November 2016, the applicant’s son was observed to be standing at the applicant’s firearms safe, the top door of which was open, with a set of keys in the lock to the bottom door. As Daniel Kraus was not licensed, the applicant clearly did not ensure that the firearms did not come into the possession of a person who was not authorized to possess it, as required by s 39(1) of the Act.

55. As regards the provision of s 65(3), the police evidence was that the applicant was in possession of 251 rounds of .38 Special ammunition and 60 rounds of .40 S&W pistol rounds. He had never held a licence or permit for a firearm taking that ammunition and was not authorized to possess it by permit. He had never denied that he was in possession of the ammunition and had never produced evidence that he was authorized to possess it.

56. Given that the applicant was at all times a serving police officer, those contraventions were of greater seriousness than if they were committed by an ordinary member of the public, as the applicant was in a position better to understand the obligations and requirements that a licence holder must and should adhere to.

57. There was an important distinction between the applicant’s authority to possess and use firearms as an individual in accordance with the Firearms Act, as compared with any authorities or approvals granted with respect to his occupation as a police officer.

58. The applicant’s contraventions of the Act and Regulation in this case were in the course of his possession of firearms as an individual, and not as a police officer. Whether he is fit to serve as a police officer or hold approvals to store equipment at his home is not relevant to contraventions of the Act committed by him as an individual holding a personal firearms licence.

59. In relation to the public interest issue, the respondent noted that the applicant had returned to full duties and had been reissued with a police Glock pistol. Nevertheless, it would be contrary to the public interest for the applicant to continue to hold his personal licence for the following reasons:

1. the mental health problems he suffered around the time of the offences did not explain why he was in possession of a large amount of ammunition that he was not authorized to possess;

2. from the evidence of police who attended at his premises to seize his firearms, it appeared that he deliberately delayed the process in order to remove contents from his firearms safe that he did not want the officers to see;

3. On the basis of the evidence provided by the applicant and his mental health consultants, it could not be suggested that his loss of the air rifle and failure to notify the respondent of its change of address were due to his mental health problems, as the relevant conduct occurred in or about 2011;

4. the applicant’s action, or inaction, led to a firearm being lost, and he had failed to accept responsibility for that loss. If firearms remain unaccounted for, that is a significant risk to public safety.

5. as a serving police officer, the applicant would be more aware than most members of the community of the ramifications of such a loss;

6. the applicant had been closely associated with the law, firearms and the risk of unsecured firearms in the community, so should have been aware of his responsibilities and requirements for which his licence was issued;

7. there was an important distinction between possession of service firearms by a police officer and the possession of firearms by an individual pursuant to a licence or permit. The tribunal should not disregard contraventions of the Firearms Act simply because the person is a serving police officer and is otherwise permitted to possess a service firearm.

60. The respondent considered that the applicant, as a police officer, should be held to a higher standard than a member of the community. Consequently it would be contrary to the public interest for the applicant to continue to hold his firearms licence.

61. In written submissions in reply filed on 20 March 2020, the respondent related the procedural history of the matter and noted that the applicant had raised a number of allegations concerning his employment that were not relevant to the issues to be determined by the tribunal. For that reason the respondent did not propose to answer each matter raised by the applicant in his statement.

62. Rather than accept responsibility for his offences and show remorse, the applicant had instead indicated that he intended to plead not guilty to the offences, had they not been dealt with under the Mental Health (Forensic Provisions) Act. He had not, however, explained how such a plea could have been maintained in the light of the factual circumstances of the contraventions. His allegations about contraventions by retired police officers discovered during his time at the security vetting unit did not appear to concern personal firearms licensing and might have concerned officers who were permitted to take and store that police service ammunition at home, whereas the applicant was not.

63. The courts had recognized that s 32 of the Mental Health Act required the magistrate to make a discretionary judgment as to the appropriateness of proceedings under that section, rather than under the general criminal law. It required the magistrate to arrive at a positive finding of fact before proceeding to deal with the defendant under the mental health legislation. That was clear from s 32(1)(b). The magistrate was required to perform a balancing exercise, weighing up on the one hand the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. The fact that no finding of guilt was made in relation to the contraventions in question and that the applicant intended to plead not guilty did not mean that he should escape an administrative sanction (Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, [47]).

64. The considerations of whether a person is fit to serve as a police officer and to hold a personal firearms licence are very different, and the persons responsible for making that decision within the police are also different. The question of whether the applicant is fit to serve as a police officer was not a matter for the tribunal to determine.

65. As regards the public interest, the tribunal should not disregard contraventions of an underlying principle of improving public safety simply because the person is a serving police officer and is otherwise permitted to possess a firearm while on duty. It was of the utmost importance that all persons, and particularly police officers, comply with all laws relating to the proper storage and handling of firearms and ammunition, given the possible consequences for public safety. The applicant should have been all the more conscious of his responsibilities as a firearms licence holder and complied with them at all times. The affidavit of D/Supt Joseph did not support the applicant’s assertion that it was not contrary to the public interest for him to hold a licence or that he is a fit and proper person. It simply explains the circumstances surrounding the rescission of approvals for officers under D/Supt Joseph’s command, which at the time concerned the applicant.

66. The applicant had sought to rely on the approval he had been granted at certain times to store his police equipment at home to support the argument that it was in the public interest for him to hold a personal licence. It was inappropriate for serving officers to seek to rely on authorizations granted within the scope of their role for the purposes of obtaining a private benefit. In seeking the permission, the applicant had failed to inform his commanding officers that his personal licence had been revoked or that he had been charged with a safe storage offence. Instead, he relied upon a safe storage inspection from before the incident in November 2016.

67. Licence holders must not only understand the laws and regulations, they must also comply with them. In that regard, the applicant as a police officer should be held to a higher standard than a member of the community. In those circumstances it was contrary to the public interest for the applicant to continue to hold his firearms licence.

60. In oral submissions at the hearing, the respondent reiterated those points and added that at the time of the inspection on 16 November 2016, D/Supt B**** had said that when he entered the shed, he had told Daniel Kraus to move away from the safe and that the latter had said “I couldn’t close it”. The applicant disputed that account, but it was corroborated by Chief Insp G**** and S/Const Elliott and should be accepted by the tribunal. The same view should be taken of B****’s evidence about the service of the suspension notice. There could be no question of trespass as the respondent was bound to suspend the licence and s 25(2) empowered a police officer to seize the licensee’s firearms once the notice had been served.

61. The fact that a person is a police officer does not mean he or she is entitled to a personal licence. The two regulatory regimes are different and it would be an error of law to conflate the two. In any event the applicant’s contraventions were in the course of his use of the individual licence. He had displayed no genuine remorse and his grounds for the review application do not take responsibility for his contraventions.

62. The Local Court charges were dismissed under mental health legislation authorizing a court to refrain from recording a conviction against a defendant who would have been found guilty: Director of Public Prosecutions v Sami el Mawas [2006] NSWCA 154, [59] – [86]; Confos v Director of Public Prosecutions [2004] NSWSC 1159, [16] – [18]. The court in such cases is required to make a positive finding of fact and could not make a s 32 order if the court would have dismissed the charges. Consequently, the offences had been proved.

Consideration

71. This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.

72. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

73. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3)(c) states that a licence must not be issued unless the Commissioner is satisfied that the Act’s storage and safety requirements are capable of being met by the applicant. Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances.

74. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12].

75. The tribunal is to take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New SouthWales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].

Contraventions of firearms legislation: s 24(2)(b)(ii)

76. Section 24(2)(b)(ii) of the Firearms Act confers on the Commissioner (and by derivation this tribunal) a discretionary power to revoke a firearms licence if the licensee “contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention”. On 23 July 2018, the applicant appeared before Penrith Local Court in relation to the three Firearms Act contraventions listed above.

Dismissal on mental health grounds

77. The three charges were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act on the condition that the applicant continued psychological counselling, attended a stress management course, attended two other self-development courses and that any breach be immediately reported to the court (exhibit R1, p 3). He was never convicted of those charges, but the Firearms Act provision applies whether or not the licensee has been convicted. It is the conduct that is of concern, not the fact of conviction.

78. The applicant maintains that no finding of guilt was ever entered against him, and that he had intended to plead not guilty, having so indicated at an earlier stage of those proceedings. The respondent submits on the basis of Sami el Mawas and Confos, however, that the learned magistrate could not have made an order under s 32 unless he or she made a positive finding of fact, and not if the charges would have been dismissed on the merits. It was only where the court would have found the defendant guilty that the magistrate had the power to dismiss into care rather than convicting. Consequently, all three contraventions had been proved. The point appears to be a matter of first impression, as the authorities cited appear to stop short of resolving it.

79. El Mawas supports the proposition that the magistrate must consider the facts as charged, but it does not go so far as to say that the court makes a finding of fact in relation to the actions of the defendant. The finding that is to be made relates to the appropriateness of having a matter dealt with in a therapeutic setting rather than under the criminal law. That appears from the following passage from Confos:

16 It is clear that s 32 requires the magistrate to make a discretionary judgment as to the appropriateness of proceedings under the section rather than under the general criminal law. But the section requires a magistrate to arrive at a positive finding of fact before proceeding to deal with the defendant under the provisions of Part 3 of the Act. The magistrate can only proceed under s 32(3) to dismiss the charge or discharge the defendant where, in accordance with s 32(1)(b), the magistrate has determined that;

“………it would be more appropriate to deal with the defendant in accordance with the Provisions of this Part than otherwise in accordance with law.”

17   In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.

80. That view is supported by the language of s 32(1) itself, which states that “If, at the commencement or at any time during the course of the hearing of proceedings” (my emphasis), it appears to the magistrate that the defendant is cognitively impaired, the relevant action can be taken. But if, pursuant to that provision, the magistrate were to dismiss the defendant into care at the commencement, or at an all an early stage, of the hearing, it could hardly be argued that the magistrate had made a positive finding of fact about the defendant’s guilt or even the existence of an actus reus. At most, the magistrate might find a prima facie case. The applicant’s submission that no Firearms Act offence has been found to have been proved against him appears to be correct.

81. Nevertheless, as Joseph and Esterman make clear, the tribunal is to take such contraventions into account even if no conviction has been recorded. It is the conduct of the applicant, established on the preponderance of probabilities, that is material.

The contraventions

82. In this case the applicant has admitted the s 65(3) breach involving the unauthorized possession of pistol ammunition. In relation to the charge of failure to prevent theft or loss of the licensed firearm (s 39(1)(b)), the applicant in effect raises a demurrer, arguing that as the airgun (an airgun is deemed by s 4(1) to be a firearm) was not in his possession after 2011, he was not able to take any steps to prevent its loss or theft. But that proposition is true only in a narrow sense. For example, he could, and should, have notified the Commissioner under the then applicable equivalent of cl 17(3) of the change in in the address of the premises where it was kept. He could have made a point of checking his collection of firearms from time to time, and thereby discovered that it was missing. He could at some stage have asked Mr Donohue if he still had it, as it remained registered to him. In my view a contravention of s 39(1)(b) has been established.

83. The third contravention with which the applicant was charged at Penrith Local Court on 23 July 2018 was allowing an unauthorized person to possess a licensed firearm under s 39(1)(c).

84. Police attended at the applicant’s residence on 16 November 2016 for the purpose of taking possession of his firearms, as his authority to keep his police pistol had been withdrawn because of concerns about his mental health. Pursuant to Police Notice 06/16 (part exhibit R2), all his other firearms therefore had to be impounded. At first the applicant appeared to be delaying the officers’ entry to the premises, but after about 20 minutes he escorted them to a shed at the back of the property, where they saw the applicant’s son Daniel Kraus standing at the applicant’s firearms safe. The top compartment, housing his ammunition, was open but the bottom compartment, where the firearms were kept, was not. There is a conflict of evidence as to whether the keys to both compartments were in the top lock or the lower one. Three officers stated that they were swinging in the lower lock and that Daniel said “I couldn’t lock it” and had his hand on the locking handle. The applicant denies all those assertions and says that the keys were in the upper lock.

85. Even on the applicant’s version of the facts, however, a contravention had taken place. Daniel, then aged 17, was not licensed, and on any view had access to the upper compartment where ammunition was kept. The applicant did not appear to dispute that. As the keys to both compartments were on the same ring, it could be said that Daniel had access to the firearms compartment as well, even if he did not unlock it, though perhaps only for a period of about 20 minutes. An aggravating factor in relation to all three violations, as the respondent pointed out, is that as a serving police officer, the applicant should have been aware of the legal requirements relating to firearms and complied with them.

86. [NOT FOR PUBLICATION]

87. [NOT FOR PUBLICATION]

88. There are some mitigating factors, however. The applicant has an otherwise unblemished record in the police force, and in the army reserves, including in relation to firearms handling. For certain periods he has been authorized to store his service pistol and ammunition at home, e.g from 11 October 2019 (exhibit A7). When the authorization was revoked, it was not by reason of any dereliction of duty on his part, but because a new commanding officer had considered that record-keeping on such matters had been previously below standard and rescinded all similar authorizations in order to start afresh.

Psychological and psychiatric evidence

89. Also relevant is the applicant’s mental state at the time of the offences. The report of the forensic psychiatrist Dr Jones dated 17 July 2018, prepared in connexion with the Local Court proceedings (exhibit R1, pp 43 – 51) concluded that he was suffering from a significant chronic adjustment disorder with predominant anxiety symptoms. There were some PTSD symptoms as well. “This condition developed over the last few years and Mr Kraus sought some treatment earlier for symptoms. It continued to develop and was active and impacting Mr Kraus’s day-to-day functioning around the time of the alleged offences. Mr Kraus spoke of difficulties he was having at work, feeling bullied, harassed and experiencing depressed mood, anxiety, hypervigilance and problems with concentration and frustration tolerance. There is good contemporaneous evidence with respect to Mr Kraus’s unstable mental state around the time of the offences….” (id., 49).

90. His [then] current state would be considered as near remission, and he was not an acute risk to himself or others (id., 50).

91. The evaluation dated 20 July 2018 by the psychologist Ms Lynette Tull (exhibit R1, pp 52-57) is still more specific: “I consider at and around the time of the commission of the alleged offence, Mr Kraus was significantly compromised in his mental health status due to the inordinate stress he was enduring…. Now that the alleged mobbing has abated and Mr Kraus has addressed most of the effects of this mobbing, he has improved in his mental status and is functioning more fully” (id., 53). “He had reported that he had been subjected to bullying and harassment from senior management, especially Superintendent B****”,… these incidents of bullying creating psychological stress that was cumulative and compounding over a significant period prior to the time…. This overwhelm can lead [patients] to overlooking or not attending to the matters they would usually be diligent about. This factor I would consider is very relevant to the alleged offence where the usual diligence he would display was not as manifest”.

92. “His mental health was suffering around the time of the alleged offence. One of the main persons who was harassing him was Superintendent B**** and the backdrop to the 16 November night raid was that Mr Kraus reported in sessions that he was being undermined on an ongoing basis by Superintendent B****…. When B**** attended at Mr Kraus’s family home late in the evening to serve a notice and seize his firearms under the ‘welfare check’ banner, Mr Kraus’s feeling was that of even his personal home being subjected to further harassment. This was especially so when B**** had several police officers with him as well as a crew driving a caged utility. Mr Kraus felt under siege and was disturbed and angry….” (id., 55). In her conclusions, Ms Tull noted that “he is more than capable of securing and responsibly handling firearms now and in the future” (id., 57).

93. In a later assessment dated 10 July 2019 (exhibit A3), the psychologist reported that the applicant was now functioning in a close to full capacity and “at no time would I consider him a threat to himself or others”. She noted that, “He still suffers some stress but that is residual effects from the alleged bullying from his workplace. I would anticipate that this residual stress will abate over time and poses no threat to his functioning in a safe and responsible manner”. He required no further treatment. His psychological injury would not have had any bearing on his responsible management of firearms on an ongoing basis.

94. The psychiatric and psychological evaluations contain considerable detail about the unfair and oppressive treatment he reportedly suffered at the hands of certain senior officers, especially B**** and G****. A letter dated 3 December 2019 which the applicant received from Assistant Commissioner Walton (exhibit A1, annexure D), although cryptic, provides corroboration of the applicant’s account.

95. Referring to his complaints against B**** and G****, the letter says that the investigation report carried out by Detective Acting Inspector Harris from Professional Standards Command produced the outcomes that the perjury allegation against Chief Inspector G**** was resolved as “Not Sustained”, but the charge of unprofessional behaviour against him was decided as “Sustained”. “In relation to Detective Superintendent B****, the Professional Standards Command had this matter discontinued under Section 140 of the Police Act”.

96. One may reasonably conjecture that for a police internal investigation to make a finding of unprofessional conduct against an officer as senior as a chief inspector, there must have been cogent inculpatory evidence before it. It may also be noted that the charges against Detective Superintendent B**** were not dismissed as “Not Sustained”, but were discontinued under s 140 of the Police Act 1990, which gives the Commissioner virtually unlimited power to discontinue misconduct investigations. The letter of 3 December gives no reason for the discontinuance.

97. Contemporary, though indirect, corroboration of the applicant’s claims of harassment is provided by an email from Chief Inspector Caroline O’Hare APM, addressed to B**** and another senior officer, and dated 16 November 2016 (part exhibit R2).

98. She reports that “Phil Kraus advised me this morning that he is making an appointment with his GP with a view to taking sick report as he is not coping in the work environment.

99. “Over the past week and a half he has been in tears numerous times a day in my office, and in front of other work colleagues who have informed me of same.

100. “I have previously advised Phil to take sick leave and also continue to see EAP….

101. “Phil has left the office today to attend the funeral for a police colleague at Penrith and I have told him to finish in the field today after the funeral.

102. “He will keep me updated on his appointment with his GP and the outcome….”

103. I therefore find that at the time of the offence on 19 November 2018, the applicant was suffering from impaired mental functioning caused by psychological injury resulting from unfair and improper treatment by certain senior officers. That impairment contributed to his acting in an uncharacteristic and irregular manner. It had existed for a significant period before 19 November 2018 and may have played a part in his failure to surrender his handgun ammunition.

104. As the respondent pointed out, the offence relating to failure to prevent the loss or theft of a firearm which the applicant had lent to Mr Donohue in 2011 no doubt commenced before the symptoms of his psychological injury began to affect his judgment and actions. Nevertheless, although I find that the contravention is made out, relating to a .177 airgun, it may be regarded as lying towards the lower end of the scale of seriousness for such offences. As none of his contraventions involved any direct danger to public safety, I reach the same conclusion about the s 24(2)(b)(ii) ground generally.

89. He has expressed remorse over the contraventions (exhibit A2). The psychologist thought there was little chance of any recurrence of offending conduct, which was out of character in the first place. The applicant also has some supportive character references, which are discussed below in connexion with the public interest issue.

90. I therefore conclude that the applicant’s contraventions of the Firearms Act and Regulation provide insufficient grounds for revoking his category AB firearms licence. The respondent, however, advances an alternative ground for revocation, the proposition that it is not in the public interest for the applicant to continue to hold the licence.

The public interest: s 24(2)(d), cl 20

107. Under s 24(2)(d), a licence may be revoked “for any other reason prescribed by the regulations”. Clause 20 provides that the Commissioner may revoke a licence if satisfied that it is no longer in the public interest for the licensee to continue to hold it.

108. The phrase “public interest” is not defined in the Firearms Act. In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

109. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

110. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

111. The primary focus must be on the protection of public safety. As Frost JM said in the context of public interest in Petas v Commissioner of Police, New South Wales Police [2013] NSWADT 137, [36], “the licensing regime is not about punishment. It is about identifying the possible risks to the public and then making decisions that are consistent with a need to reduce any risks to a minimum”.

112. Frequently quoted in this context are Hennessy DP’s comments in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] where her Honour said that in considering public safety under the Act, “the Tribunal must be satisfied that there is virtually no risk” to public safety, while acknowledging that it would never be possible to be sure that a person presented absolutely no risk. That case dealt with the “fit and proper person criterion, but the comments have been held to apply to the public interest test as well.

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

114. In Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124, [55] – [57] I surveyed a number of the recent authorities on that point, and there is no need to repeat that discussion here. It may be helpful, however, to note that in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”.

115. In his submissions on the public interest, Mr Winram made a number of points about the three contraventions with which the applicant was charged. Those matters have been dealt with above and most of the submissions about the existence of the breaches has been accepted. However, I have taken the view that mitigating circumstances lead to the conclusion that the revocation should not be upheld on those grounds.

116. In addition, the respondent advanced several other propositions in relation to public interest. As a police officer, the applicant would have been more aware than most members of the community of the ramifications of loss of the airgun. He had been closely associated with the law, firearms and the risk of unsecured firearms in the community, and should therefore have been aware of his responsibilities and the requirements for which his licence was issued, and upheld them. There was an important distinction between possession of service firearms by a police officer and the possession of firearms by an individual pursuant to a licence or permit issued under the Act. The tribunal should not disregard contraventions of an Act that has an underlying principle of improving public safety, simply because the person is a serving police officer and is otherwise permitted to possess a firearm.

117. Licence holders must not only understand the laws and regulations, they must also comply with them. In that regard, the respondent submitted that the applicant, as a police officer, should be held to a higher standard than a member of the community.

118. It is reasonable to expect that serving police officers will be more familiar with firearms law than other citizens, though it may be going too far to say that they should be held to a higher standard than a member of the community, given the competing principle of equality before the law. But the firearms legislation is complex, and it is not unknown for police responsible for enforcing it to assert bona fide, and act upon, a mistaken view of it: Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [69]; Wilson v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 38, [64].

Character references

119. The applicant’s character references are also relevant to this issue. Lt Anthony De Bijl, platoon commander at the army’s special operations training and education centre [SOTEC], wrote on 9 July 2019 (exhibit A4) that he is aware of the present application and the reasons for it. He states that the applicant is a corporal [now sergeant] in the reserves in the Lancers, but had been specifically seconded to SOTEC to undertake a specific role, full-time for 4½ months.

120. His role was to train special forces candidates in weapons handling, with the expectation that he will remain proficient in order to deliver a higher standard of instruction. Training records show that he is qualified on 20 weapons systems ranging from pistols, rifles and machineguns, to explosive rockets and shoulder-fired missiles. He is also able to supervise the firing of those weapons systems on various ranges. Lt De Bijl was not aware of any reasons for concern about any aspect of the applicant’s instructing on, or the use of, any weapon system.

121. Further, the applicant displayed a high level of professionalism. He has represented the Australian Army on several occasions including competing in the military skills competition, which involved competitors from countries around the world. That competition involves a number of live fire activities with army service weapons. His professionalism and leadership in all aspects of that competition were recognized by the brigade commander hosting the competition. He had found the applicant to be of impeccable character and a role model for all soldiers.

122. Major Colin Bigger wrote on 12 May 2019 (exhibit A1, part attachment B) that he had known the applicant since he enlisted in the Lancers on 31 January 2008. Major Bigger was aware of the charges that had been brought against the applicant. He stated that he had found the applicant to be of impeccable character and a role model for all soldiers. He was the best performing NCO in the squadron. As evidence of his character, he privately made Major Bigger aware of the potential problem at his civilian place of employment that could impact on his role in the reserves. He stated that he was raising the matter with him straight away as it revolved around both mental health and firearms.

123. At no time did Major Bigger witness any signs of behaviour causing concern about his access to weapons or ammunition. Major Bigger gave the applicant permission to speak directly with the commanding officer, Lt Col. Francis, about any aspect of the proceedings. At no time did the commanding officer order him to place restrictions on any aspect of the applicant’s employment.

124. [Sgt] Kraus had continued to inform him and the CO about this matter as required throughout 2017 and 2018 and Major Bigger saw no impact on his high level of performance. In fact he took on extra responsibility as acting sergeant and led the push to work with their special operations training teams. The feedback Major Bigger had received from those elite units was that the applicant is an excellent operator who is a well-regarded and sought-after talent. He looked forward to when he was promoted to sergeant. In all the time he had known the applicant, he had found him to be a loyal, hard-working and dedicated NCO who was a credit to himself, the squadron and the reserves.

125. Lt Col. Scott Francis’s reference of 13 May 2019 (exhibit A1, part attachment B) was provided in his capacity as the former commanding officer for Mr Kraus over the period of January 2016 to December 2018. He wrote that the applicant had always been a quiet but determined junior NCO who had been an outstanding junior leader. He showed great compassion for those under his command, but drove them hard when the situation warranted it. He had on occasion raised concerns with decisions made by himself or the OC, but had always done so in a courteous and professional manner. His loyalty, commitment to his work and his professionalism were recognized within the unit and had also been recognized more widely.

126. The applicant volunteered to command their unit’s team to participate in the International Military Skills Competition and developed a training program ensuring that the section was fully prepared for the event. During the leadup, he worked without supervision, outside the normal army reserve training periods and communicated back to his OC each week to keep him updated on the status of training and his analysis of how the section was working., The section performed better than was expected, as they were the only part-time soldiers to attend. He was warmly congratulated by the brigadier commanding the event, and also by another officer from the competition.

127. The applicant had also been an effective trainer with SOTEC, notably in the specialized infantry minor tactics training program. He was also involved in providing training support to one of the security agencies. While it was not possible to share any details, he could say that he is considered a valuable resource and has been used on numerous occasions. In terms of his integrity with himself as CO, he had been upfront about the situation. He spoke to his direct army supervisors on the telephone as soon as he was issued with the court attendance notices and followed up with an email outlining all the charges. He requested to speak to Col. Francis personally to explain the situation and was open about it and about his mental state. At no time did Col. Francis feel that he was misrepresenting the situation, and he answered questions put to him.

128. Col. Francis had since moved into a different position within the army, but if he were in a position to have [Sergeant] Kraus serve with him again, he would have no hesitation.

129. Those references could hardly be more laudatory. In particular, they express unalloyed confidence in his dependability and responsibility in handling and using firearms of all kinds. They contrast sharply with the portrayal of the applicant by the respondent. Yet the army references were in no way challenged or deprecated by the Commissioner.

130. Again, as was previously noted, the applicant has on occasion received permission to store his police firearm and ammunition at home and has been temporarily entrusted with a pistol issued to a senior officer who had retired. There is no evidence that he has ever handled or used a firearm in an improper or dangerous manner. The unchallenged psychological evidence is positive about his mental state and his ability and motivation to handle firearms safely. I therefore find that there is no significant or realistic risk to the public in his having access to firearms for private purposes and that it would not be contrary to the public interest for him to hold a firearms licence. The decision under review is therefore to be set aside.

Orders

1. Decision under review set aside.

2. A category AB firearms licence is to be issued to the applicant.

3. Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and the paragraphs in these reasons marked “[Not for publication]” are not to be published.

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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: 17 June 2020