Lucas v Commissioner of Police, New South Wales Police Force

[2025] NSWCATAD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lucas v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 93

Hearing dates:

16 April 2025

Date of orders:

1 May 2025

Decision date:

01 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof G D Walker, Senior Member

Decision:

(1)   Decision under review affirmed.

(2) Pursuant to s 59 of the Administrative Decisions Review Act 1997, the Respondent (“the Commissioner”) not be required to lodge copies of the documents or parts of documents (“the Protected Material”) specified in the confidential statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (“the Confidential Statement”).

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3 is prohibited.

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

(5)   Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Catchwords:

LICENSING – firearms licensing – licence refusal – domestic circumstances – self-harm – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

Austrac Operations Pty Ltd v New South Wales [2003] FCA 1013

Borg v Commissioner of Police [2025] NSWCATOD 25

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

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

Emery v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 122

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Finlay v Commissioner of Police [2020] NSWCATAD 5

George v Rockett (1990) 170 CLR 104, [1990] HCA 26

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366;

LY v Commissioner of Police [2004] NSWADT 115

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

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

May v Commissioner of Police [2002] NSWCATAD 218

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

R v Rondo [2001] NSWCCA 540

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Tolley v Commissioner of Police [2006] NSWADT 149

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

Category:

Principal judgment

Parties:

Tyla Lucas (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Applicant (Self-Represented)
Maddocks Lawyers (Respondent)

File Number(s):

2024/00460541

Publication restriction:

See above.

Reasons for decision

1. The applicant Mr Tyla Lucas applied to this Tribunal on 11 December 2024 for review of a decision by the respondent Commissioner on 6 November 2024 to refuse his application for a category AB firearms licence.

2. The applicant had on 18 October 2023 submitted an application for a category AB licence, and on 23 November 2023 his application was approved and a special condition was imposed on his licence prohibiting him from possessing or storing firearms, firearm parts and ammunition at any location where Mark Lucas (the applicant's father), Mark's wife Annette (the applicant's stepmother) and the applicant's partner reside or frequent.

3. An internal review varied the decision to impose a special condition on his licence on 20 December 2023 and instead refused his application on the grounds of his domestic circumstances and public interest concerns. On 19 July 2024 he again applied for a category AB licence, and that application was refused on 28 August 2024, again on the grounds of domestic circumstances and public interest. An internal review affirmed the refusal decision on 6 November 2024 (exhibit R1, pp 72 – 75). The applicant applied to this Tribunal for review on 11 December 2024.

4. It was not suggested that the applicant himself should not hold a licence on fitness and propriety grounds or in view of the public interest. The respondent’s position is essentially that the applicant resides at the same property as his father, Mark Lucas, whose firearms licence was revoked following criminal charges and convictions for assault and resisting arrest. The applicant also resides at the same property as his stepmother Annette, whose firearms licence was revoked after the Commissioner determined that it was no longer in the public interest for her to hold a licence, and his partner, who recently committed an act of self-harm.

5. The matter came on for hearing in this Tribunal on 16 April 2025, the applicant appearing by AVL link. At the conclusion of the open hearing, a confidential hearing was held in accordance with the procedure indicated in the tribunal’s decision in Borg v Commissioner of Police [2025] NSWCATOD 25, [37] – [39].

Applicable legislation

6. Section 11(4)(a) of the Firearms Act 1996 (NSW) (Firearms Act) provides that the Commissioner must not issue a licence to a person 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.

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

The evidence

8. The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibits R1 and R2) and on cross-examination of the applicant.

9. The applicant did not lodge a witness statement as directed by Ransome PM on 28 January 2025 but instead on 15 April 2025 lodged an affidavit (exhibit A1) dealing with all aspects of the case.

10. The affidavit comprises both matters of fact and extensive material by way of submissions, but it is possible to identify the principal representations of fact. Thus the document refers to an incident on 12 April 2015 when the applicant was play-fighting with his younger brother Brise. The fight had escalated and another brother, Aden, broke it up and contacted police. The applicant's father was required to surrender his firearms to local police for a period of 28 days, in accordance with domestic violence legislation. They were duly surrendered the following day and collected on 12 May 2015.

11. In relation to that incident the applicant deposed that he resides in a separate residence from his father and stepmother and that neither of them has access to the house where he resides. He does not share domestic living arrangements with them and they live completely independently from each other. The incident took place when the applicant was 17 years old; no-one was injured and no charges were pressed. It was a minor argument between children and the applicant could not see the relevance of the incident to his application.

12. On 1 January 2021, the applicant had called police because of an incident involving his father, who prevented him from leaving the property. During the call, the applicant had said his father was armed with a crowbar. The applicant subsequently contacted police again to tell them not to come to the property as he had left and did not need them. He was informed that because of the domestic nature of the incident they would still be attending the property.

13. The applicant acknowledged that the incident did take place, but said it had been blown out of proportion. While celebrating the New Year with his family, the applicant had discovered that the keys had been removed from his vehicle. He assumed that his father had taken them and an argument ensued. Being young and unused to drinking, he had called police while distraught. He concluded on reflection that the removal of his keys was in his best interests and tried to stop the police from responding to the call. They nevertheless arrived and both he and his father had explained that no-one was in in any danger and the matter was resolved. Again, the applicant said he failed to see the relevance of the incident to his application.

14. On 20 October 2023, police were again called to the property, in response to a call that the applicant’s partner had self-harmed. The applicant disputed the respondent’s reports that his partner had been taken to a local hospital pursuant to s 20 of the Mental Health Act 2007 (NSW) (Mental Health Act). She had willingly gone to the hospital to receive physical medical care for her injuries, and returned home later that night, he said. Further, she is not applying for a licence and would not have access to any firearms in the applicant’s possession, in accordance with the Firearms Act. He stated that he also failed to see the relevance of that incident to his application.

15. The affidavit then refers to an incident that arose out of an incident in November 2018 between the applicant's father and his brother-in-law. A dispute had arisen about a missing piece of machinery, and when the brother-in-law called the applicant's father on 7 January 2019 to ask him about it, the applicant's father told the brother-in-law to meet him in a nearby park to discuss the matter.

16. Thinking during the meeting that he was about to be assaulted, the brother-in-law backed away and turned to run but was knocked to the ground by what he believed to be a push by the applicant's father, who then jumped on top of him, pinning him to the ground and placing his knees on the other man’s chest. As a result of the incident the brother-in-law received injuries and contacted police, who proceeded to apply for a provisional apprehended violence order (PAVO) for the protection of the brother-in-law and charged the applicant's father with a number of offences.

17. The charges included not surrendering a firearm to police when licence suspended (dismissed after hearing) and resisting an officer in the execution of duty (convicted and fined). These matters arose from an interaction between the applicant's father and police attending at the property on 10 January 2019 in connexion with the brother-in-law’s complaint to police (exhibit R2, p 10).

18. The applicant stated that his father had been forced to defend himself from his brother-in-law and it was the first and only violent offence on his record. His standing on his rights and referring to the Constitution was irrelevant and all persons have the right under arrest to want to know their rights. He had not been found guilty of any firearms related charges as a result of the episode. The applicant declared that the version of events relating to the applicant's father’s arrest was disingenuous and inaccurate. The applicant's father’s solicitor held video footage of the arrest showing the applicant's father surrendering to police and offering to come with them freely, while police continued to assault him.

19. The respondent had related that about one month after the applicant's father’s licence was suspended, his partner (and now the applicant’s stepmother), had applied for a category AB licence, which was issued on 28 March 2019. In her application the applicant's stepmother had given her residential and safe storage addresses as a particular street address (exhibit R2, pp 35 – 40), not the property where she, the applicant's stepmother and the applicant resided. The applicant stated that his stepmother had to the best of his knowledge resided at the other address at the time of her application. When she had moved to the address where she and the applicant's father currently reside, she had notified her change of address and safe storage address, no attempt having been made to conceal the fact from the Firearms Registry.

20. The police had stated that they had been unaware of the relationship between the applicant's father and stepmother when the applicant's stepmother had submitted her change of details request, but when they did become so aware they attended the property on 23 May 2023 for the purposes of a safe storage inspection (exhibit R2, pp 41 – 48). The applicant asserted that the police claim to have been unaware of the relationship was absurd as the incident that had resulted in the applicant's father’s firearms licence being suspended occurred with the applicant's stepmother’s brother-in-law and they had been informed of the relationship at the time.

21. In the course of the 23 May inspection police had formed the view that the applicant's stepmother had little knowledge of her firearms (exhibit R2, pp 41 – 44, 20). The applicant responded that the applicant's stepmother had been trained in the safe handling of firearms on 13 February 2019 and had successfully completed her certificate of firearms and hunting safety awareness. She had been intimidated by the presence of police in her home and that had led to her flustered demeanour.

22. He himself had no criminal history and there was no evidence to suggest he would disregard the laws regarding the safe use of firearms. The applicant's stepmother had never been held under the Mental Health Act. During the incident following her self-harm attempt, she had been released with no conditions being attached, that same night. The medical staff at the hospital were content that she did not pose any continued risk to herself or others. The applicant's partner is currently employed in a field for which she was required to have passed all relevant police clearances. Further, she would not have access to firearms, which would be securely locked in a safe in accordance with the legislation. The balance of exhibit A1 consists largely of submissions, the content of which is outlined later.

23. Cross-examined by Mr Winram on behalf of the respondent, the applicant said that he was at that time at his father's house for the purposes of his AVL appearance in these proceedings. The applicant's father and stepmother had assisted him in preparing for the hearing. He had used artificial intelligence to find applicable cases and had read all the AI case summaries. He worked in the family business whenever there was work available, which was on and off. The business owners include the applicant's father and stepmother, who owns the machinery.

24. The photograph in exhibit R1, p 40 shows the applicant's father’s house on the left, which houses the office of the family business. The applicant frequently visits his father as they are a close family unit and have good relations. On the right of the picture is a smaller residence where the applicant and his partner live. They have a workshop building shown in the photograph in exhibit R2, p 34. It contains many tools that are needed for the business, and he shares it with his father. There is no fence between their two houses. The applicant's father owns the property and they have access to all parts of it, except each other’s houses. They work together to maintain the property.

25. The applicant agreed that he had not been present at the time of the incident in November 2018, nor had he been present at the time of his father’s arrest. He believes his father's solicitor has a video of the arrest, but does not have a copy of it. He had not helped his stepmother to prepare her firearms licence application. He had not been present when she had surrendered her firearms to police and knew only what had been shown on the police body worn video (part exhibit R2). He had never seen his stepmother hold or use a firearm, other than in that video.

Applicant’s submissions

26. When opening his oral submissions at the hearing, the applicant said he had used artificial intelligence only in order to find cases and case summaries. He had written the whole of the affidavit, which had been corrected by AI. He was not bound by the model litigant rules that applied to the respondent.

27. Commenting on the police video (part exhibit R2) which he played on the screen, he submitted that the officer had asked his stepmother for a Winchester, not for a particular calibre. She had given him the 303, which was the largest in the gun safe and was the first one to hand. She was confused when the officer asked again for the 303, which she had already surrendered to him. She had correctly identified the shotgun and the other firearms.

28. The officer had given her a document which was not completed on the scene but had been already written, consequently the suspension could not have been based on any unfamiliarity with firearms.

29. The applicant submitted that his partner had gone willingly to a local hospital to receive physical medical care for her injuries, and the hospital authorities had said she represented no danger to herself or to anyone else. There was no evidence to the contrary. The self-harm incident was 2 years ago and there had been nothing since. She had been seeing a psychologist for help with any problems she had.

30. The respondent’s assertion that police had been unaware of the relationship between the applicant's father and stepmother was unfounded, as his stepmother had revealed the connexion in her statements. The respondent could provide no facts in evidence to support any of their beliefs regarding the applicant's stepmother not maintaining continuous control over firearms. Their case rested on pure conjecture, as did their assertion that the applicant's stepmother only sought administrative review as a result of coercion by the applicant's father. There was nothing suspicious or inappropriate about a husband assisting his wife.

31. The respondent had not been aware of the lease agreement between the applicant and his father when they made their original decision to refuse the application. Upon being informed of it during his internal review, they decided to fetter discretion rather than accept that he did not share a dwelling with the applicant's father: Finlay v Commissioner of Police [2020] NSWCATAD 5, and the fact that they shared a shed and a pool on the property was no evidence of cohabitation. The applicant did not explain which discretion had been fettered or how.

32. The fact that the law regarding the applicant's father’s conviction had changed had no bearing on these proceedings. The matter had been heard and settled in court and the respondent could not retrospectively treat the charges as being prescribed offences under the Firearms Act. The applicant's brother Aden had held a licence since just after his stepmother's had been issued and his licence carried the same conditions as those on the applicant’s licence.

33. There was no evidence of attempted circumventing of the legislation. The timeline showing that as licences were revoked, others were applied for, simply showed that somebody needed to have access to firearms for the genuine reasons listed on their applications.

26. As regards the proximity of the two residences, in towns, suburbs and cities dwellings were separated by mere metres, and in many cases only by an interior wall. The applicant had a tenancy from his father and consequently there was no cohabitation. Firearms were needed on the property. He had no criminal history and there was no evidence to suggest that he would disregard the laws regarding the safe use of firearms. His lack of criminal history indicates that he is in fact a model citizen who has a genuine reason to own and use firearms.

27. The High Court had held in George v Rockett (1990) 170 CLR 104 at 115 that suspicion was "a state of conjecture or surmise where proof is lacking". In R v Rondo [2001] NSWCCA 540 at [53] (Rondo), Smart AJ had stated that “a reasonable suspicion involves less than a reasonable belief but more than a possibility”. The respondent was trying to justify the use of discretionary powers and could provide no articulable evidence to prove the belief and all its submissions were based on conjecture and suspicion.

28. The respondent had submitted no evidence to suggest that the applicant's father had ever been, or would ever be, in possession of firearms while unlicensed. To rely on one violent offence in which on conviction he received only a fine and a good behaviour bond was seeking to extract more penalty out of the judicial ruling than was ever intended. Following the incident on 12 April 2015 between the applicant and his younger brother, police had directed him to surrender his firearms for 28 days in accordance with domestic violence legislation. The applicant's father had not been present at the time but had been more than willing to surrender the firearms on his return, which he did. They had been returned after 30 days. The applicant's father had faced no charges for six years and there was no pattern of lawbreaking.

29. The applicant's brother, Aden, had applied for a licence in 2020 and after it had issued, he assisted his stepmother with any tasks requiring firearms at the property. As he had held a licence at all relevant times, there was no need to attempt to circumvent the legislation as the respondent alleged. The applicant himself had submitted a licence application on 18 October 2023 so that another licensed shooter was available on the property. The applicant's brother still held a valid license at the time.

30. The fact that the applicant's brother had held a valid license to shoot at the applicant's father's property before the applicant’s own application and had been subjected to the same conditions at the same time would clearly show that he had no reason to circumvent the licensing rules. The respondent had not disclosed this. In SFZDE v Minister for Immigration and Citizenship [2007] HCA 35, [29], the High Court had observed that a failure by a minister to disclose to the tribunal relevant material denied procedural fairness and might amount to jurisdictional error.

31. The applicant's partner has seen a psychologist regularly since the self-harm event and the psychologist believes she is not a realistic threat to herself or others. That is evidenced by the fact that she has never been held under s 20 of the Mental Health Act. In any event the applicant's partner is not applying for a firearms licence and has never held one. The applicant has no problem with complying with relevant legislation denying unauthorised persons any access to firearms held in his care.

32. The applicant's father is not a significant risk to public safety. He was considered a suitable and proper person to own firearms up until 2019. Since then he has had no further criminal history in the six years since his licence was revoked and has never been incarcerated. He is a model citizen who raised four boys on his own and operated a successful business for the best part of 10 years. He was commended by the Premier of New South Wales and the Commissioner of New South Wales Rural Fire Service for his selfless acts during the 2019 and 2020 bushfires.

33. The applicant submitted that the respondent had cast a wide net in its attempt to vilify members of his extended family. It had slandered the good name of people engaged selflessly in the care of the most vulnerable members of society. The applicant's brother was a caretaker for a terminally ill paraplegic, who owned no firearms. The applicant's partner continues to work in a care-related field and has worked tirelessly to help members of her community. The applicant's stepmother has devoted her life to the care of the elderly.

34. The respondent had provided no evidence that any unauthorised person had ever been in possession of a firearm at the applicant's father's property. The timeline in which he had applied for a licence once again was only evidence of the fact that a licensed shooter was required at the property. Again, the respondent believed he shared a domestic cohabitation with his father and stepmother at the time of his application. The tenancy agreement between the applicant and his father, however, showed that not to be the case.

35. As regards the public interest, the applicant submitted that there was no evidence of a threat to public safety, only historic matters, conjecture and suspicion. He has never committed an offence, nor has he ever been the subject of a caution or other action in relation to firearms. The property on which he lives and works is over 40 ha, and they have livestock (although not for commercial purposes) that are currently at the mercy of feral animals and vermin.

Consideration

Approach

44. 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.

45. The Tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

46. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s intemperate habits or being of unsound mind.

47. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the Tribunal’s exercise of jurisdiction.

Domestic circumstances

48. The first provision on which the respondent’s case for licence refusal rests is s 11(4)(a) of the Firearms Act, which provides that the Commissioner must not issue a licence to a person 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.

49. The phrase “reasonable cause to believe” in this context was considered by the Tribunal in LY v Commissioner of Police, New South Wales Police [2004] NSWADT 115, [41] – [43], where the Tribunal referred to the decision in Austrac Operations Pty Ltd v New South Wales [2003] FCA 1013 in which Emmett J explained that the phrase means “[N]ot satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief”.

Incident 12 April 2015

50. In that connexion the respondent refers to the incident on 12 April 2015 when the applicant was play-fighting with his younger brother. Another brother broke up the fight and contacted police (exhibit R1, pp 14 – 17). No injuries were detected by police and neither the applicant or his brothers wished to provide a statement. They were all given a warning about making physical contact with others, including each other.

51. The applicant's father was not involved in this event, except that he was required by police to surrender his firearms for 28 days because of the domestic violence aspect of the case. He did so and the guns were duly returned to him after that period expired. The applicant submitted that the incident was irrelevant to his application, but it has some significance as a piece of a picture showing domestic incidents requiring police intervention. There had apparently been an earlier such incident, on 1 November 2009, when police were called in response to reports of a noisy argument involving the applicant's father, his then de facto partner and her son (event E 134493996, exhibit R1, pp 18 – 19). No offences were detected and no further action was taken.

Incident 1 January 2021

52. On 1 January 2021, the applicant called police because of an incident involving his father, who prevented him from leaving the property and withheld his car keys. During the call, the applicant stated that his father was armed with a crowbar, although he did not say it was being used in a threatening manner (exhibit R1, pp 12 – 13). When police spoke to the applicant by telephone he was evasive with police and told them they were not required. Police attempted to speak to the applicant's father when they arrived at his property. He was not forthcoming with information, informed police that he was recording them with his mobile telephone and declined to offer his surname and date of birth. He only said “Nothing happened, I have nothing to report”.

53. The applicant’s comment on this incident was that it did happen but it had been “blown out of proportion”. He had assumed that his father had removed his car keys and an argument ensued: “Being young and unused to drinking I called the police while distraught” and had later thought that his father was acting in what he saw as his best interests. If that were so, his somewhat obstructive demeanour is difficult to explain. The applicant said the report was irrelevant to his firearms application (exhibit A1, p 2).

Self-harm incident 20 October 2023

54. The applicant acknowledged that an incident had occurred on 20 October 2023 when police had been called to the property in response to a call that his partner had self-harmed. Police asked about the reason for the attempt, to which the applicant replied that it was “personal” and would not elaborate further. He also stated that his partner had “a short history of self-harm” but said she had not self-harmed in a number of years. The applicant's partner was conveyed by ambulance to a local hospital under s 20 of the Mental Health Act 2007.

55. The applicant strongly disputed that the applicant's partner had been conveyed to hospital under s 20, insisting that she willingly went to the hospital to receive physical medical care for her injuries, and returned home that night. He submitted that the suggestion that she was taken under s 20 was “a fabrication” and “a reprehensible claim based on unfounded accusations and exaggerations absent facts in evidence from a model litigant”.

56. The event report, however, expressly states that the applicant's partner was taken by ambulance to the hospital under s 20. Here the applicant appears to be under a misapprehension about s 20, which only authorises an ambulance officer to convey a person to a mental health facility if the officer believes the person is mentally ill or mentally disturbed. It does not provide for “scheduling” or detention other than for the purpose of conveying the person to the mental health facility.

57. The applicant acknowledges that his partner “sees a psychologist regularly since the event in question” (exhibit A1, p 12) but states that the psychologist believes she is not a realistic threat to herself or others. The applicant adduced no evidence from a mental health professional on the point, or from the applicant's partner herself.

November 2018 – January 2019 incident

58. The most important episode occurred in early January 2019. In November 2018 a dispute occurred between the applicant's father and his brother-in-law over a missing piece of machinery worth approximately $1000 (exhibit R2, p 9). On 7 January 2019 the brother-in-law called the applicant's father about the item, and the applicant's father told his brother-in-law to meet him at a nearby park to discuss it. When they arrived at the park, the applicant's father and stepmother were reportedly sighted in a vehicle. As the brother-in-law approached, the applicant's father stepped out and approached his brother-in-law aggressively, saying “are you calling me a liar?” The brother-in-law reportedly believed he was moving to strike him, and therefore began to back away, turning to run, but was knocked to the ground by what he believed to be a push by the applicant's father. The applicant's father then reportedly jumped on top of the brother-in-law, pinning him to the ground and punching him a number of times in the face and head (ibid.).

59. As a result of the incident, the brother-in-law received a swelling and bleeding nose and eyes, as well as cuts and abrasions elsewhere. He was treated by ambulance officers at his home. Police subsequently obtained a domestic violence evidence in chief (DVEC) video recorded statement and obtained a provisional apprehended violence order for the protection of the brother-in-law (id., 10). Police feared ongoing violence by the applicant's father. When police called at the applicant's father's property and informed him that he was under arrest, the latter immediately denied the incident and began to argue with police, questioning their authority. He continued to walk around his residence, talking about the “Constitution”, picking up a large book and continually referring to it as to his “rights”.

60. When told that as it was a domestic violence matter and an AVO had been taken out against him and that his firearms and licence were immediately to be surrendered to police, the applicant's father refused, stating that he knew the legislation and would hand the firearms to a dealer if required
    and continually arguing with police. When escorted out of the house he refused police directions to hand over the book, continuing to argue, and as police physically removed and continued to withhold the book from him, he stepped back and continued talking about the “Constitution and the concepts of habeas corpus” (id., 11).

61. He then tried to escape from police, and wrestled away from them, as police continued to physically restrain him and place handcuffs on him. He was informed that his actions were resisting arrest and he was repeatedly asked to comply with the directions, but refused to do so. Police used their OC spray to prevent his physical resistance from continuing. He was then able to be handcuffed.

62. When police attended the applicant's father's property to seize his four registered firearms, they were admitted by the applicant's stepmother, who said that she did not know where the keys to the firearms safe were or how to locate them. It was then discovered that the safe also needed a PIN to gain entry. The police asked him to tell them where the key was located and what the PIN was, but he refused to provide any details. As police were organizing a locksmith to attend, he finally informed the custody manager where the keys were located (id., 13). As a result of this fracas, a watch worn by one of the constables broke and fell to the ground.

63. As a result of this incident, the applicant's father was charged with the following offences, with the results shown:

1. assault occasioning actual bodily harm (DV), which was withdrawn;

2. assault occasioning actual bodily harm, for which he was made subject to a 10-month community correction order, following an appeal;

3. not surrender a firearm to police when licence suspended, which was dismissed after hearing;

4. resisting an officer in the execution of duty, for which he was convicted and fined after an appeal; and

5. destroy or damage property, for which he was convicted, fined and ordered to pay compensation (exhibit R2, pp 1 – 3).

64. The applicant submitted that in the circumstances his father was forced to defend himself from his brother-in-law. It was the first and only violent offence on his record and he had committed no contraventions in the past 6 years, consequently there was no pattern of violent behaviour. He was entitled on his arrest to refer to the Constitution and his rights. The applicant submitted that the respondent’s version of events relating to his father’s arrest was disingenuous and inaccurate. His said his father's solicitor holds video footage of the arrest showing his father surrendering to police and offering to come with them freely, as police continued to assault him.

The applicant's stepmother’s part in the process

65. The applicant's stepmother applied for a category AB firearms licence approximately a month after his licence had been suspended. An AB licence was issued to her on 28 March 2019. In her application, the applicant's stepmother had given her residential and safe storage addresses as an address different from the address where the respondent contended she, the applicant's father and the applicant resided (exhibit R2, pp 35 – 40). She then proceeded to submit applications for permits to acquire the four firearms previously owned by the applicant's father, using the different address as her residential and safe storage addresses, and not the address of the applicant's father's property (id., 21 – 32).

66. On 1 October 2019, the applicant's stepmother submitted a change of details request to the Firearms Registry, which included a change of postal address and safe storage address to the applicant's father's address, but no change of residential address (id., 33). Police later became aware of the relationship between the applicant's stepmother and father and on 23 May 2023 attended the applicant's father's property for the purposes of conducting a safe storage inspection.

67. In the course of the inspection, the applicant's stepmother admitted that she did not use the firearms much. When asked to remove the Winchester from the safe, she produced the Springfield 303 instead. Police then asked her for the 303, whereupon she became confused and gave them a 22 Hornet, saying “Sorry, I don’t know my guns”. The officers again asked her for the 303, to which she replied “I don’t know, I thought this was a shotgun”, which it in fact was. She then gave them the final firearm, the Winchester (id., 42 – 43).

65. Police then questioned the applicant's stepmother in relation to the applicant's father and police concerns about his gaining access to the firearms. They noted that the safe is located in the office where the applicant's father runs his business. The safe has keypad and key access. “From speaking with [the applicant's stepmother]”, the report states, “Police hold real concerns that [the applicant's father] would and has had access to the firearms. It did not appear that [the applicant's stepmother] had the knowledge to use the firearms registered to her”. Police then suspended her firearms licence and took possession of her firearms.

66. Police then had a conversation with the applicant's stepmother in which they concluded that the applicant's father had lost his firearms licence just before she obtained her licence, the Firearms Registry had been unaware of the relationship between the applicant's father and stepmother when it granted her firearms licence, and as a result that factor had not formed part of its assessment. The issue would need to be assessed further, given that police held concerns that the applicant's father might still gain access to the firearms. Her licence was revoked on 6 September 2023, the revocation decision being affirmed on 23 October 2023.

67. On 7 November 2023 she sought administrative review of the decision, allegedly under the direction of the applicant's father, and the matter was dismissed by Mobbs SM on 31 May 2024 as frivolous, misconceived and lacking in substance. No citation for that hearing is given and there does not appear to be an available media-neutral report of it. The proceeding is summarized, however, in information report I 80167037, 24 April 2024, exhibit R2, pp 49 – 51.

68. The report states that the applicant's stepmother argued that the Tribunal had no jurisdiction to provide the remedies she sought, which were “certiorari and prohibition”. She submitted that police appeared to be running “a political smear campaign in another attempt to confer jurisdiction upon themselves for the removal of [her] licence and firearms” and that their power to seize the firearms had not been proved: “It is the belief of the author that these submissions strongly resemble those used by individuals who hold sovereign citizen ideologies”.

69. She repeatedly sought leave for the applicant's father to speak on her behalf, which request was refused. During the hearing he could clearly be heard and seen to be directing her on what to say and to challenge the tribunal’s jurisdiction. The applicant's stepmother did not appear to make any comments or submissions without being directed to do so by the applicant's father and did not appear to understand her submissions or the tribunal proceedings. On multiple occasions she stated that she was suffering from anxiety and unable to continue. “It is the belief of the author”, the report continues, “that [the applicant's stepmother’s] application and submissions were done so on the direct instruction and coercion of [the applicant's father]”.

70. The applicant’s response was that the claim that the applicant's stepmother only sought administrative review while being coerced by the applicant's father was nothing more than conjecture and was backed by no evidence. The applicant's father only attempted to assist his wife in regards to proceedings as she was struggling to articulate herself in a courtroom setting. A husband assisting his spouse was not suspicious or inappropriate, he contended.

71. The information report itself, however, graded “official” and “A1 confirmed” is evidence, and the applicant adduced no evidence, written or oral, from either his stepmother or father, about the proceeding. As to whether the Firearms Registry was aware of the relationship between the applicant's father and stepmother when she applied for a licence giving her residential and safe storage addresses as a different address from the applicant's father's, the applicant stated that “to the best of [his] knowledge” she did live at the other address at the time of her application. When she moved to the applicant's father's property, she submitted her change of postal address and storage address, no attempt being made to conceal the fact from the Firearms Registry.

72. That less than resounding assertion does little to allay concerns that she may have given her former address in order to conceal her connexion with the applicant's father, as the respondent indicated, also pointing out that when she submitted a change of postal and safe storage addresses to the applicant's father's address on 1 October 2019, she did not notify the change of residential address (exhibit R2, pp 21 – 33).

73. The applicant submitted that the Firearms Registry must have already known of their relationship. Whether or not the police held information from which the relationship might have been inferred, from event report E 79510051 it would appear that they became aware of it only a short time before they arranged the safe storage inspection at the applicant's father's property on 23 May 2023 (exhibit R2, p 42). Here again, the applicant adduced no evidence, written or oral, on the point from either his stepmother or father.

74. At the inspection of the applicant's stepmother’s safe storage arrangements on 23 May 2023, she admitted that she did not use the firearms much and that she did not know her guns very well. When asked to produce of Winchester from the safe, she gave the officer a Springfield 303 instead. Some confusion on both sides ensued when she was asked to produce the 303, when she had already handed it over. Part of the problem seems to have been that she was asked for the firearms by make rather than by calibre or type, but in any event she was able to identify most of the firearms correctly. That interchange, which was recorded on the police BWV (part exhibit A2), does not appear to take the matter much further.

75. Police also noted that the room where the safe was located was also used by the applicant's father as the office for the family earthmoving business. The safe itself had keypad and key locking. Realizing that the applicant's stepmother had applied for her licence just after the applicant's father’s licence had been revoked, and having become aware of the relationship between the two, police held real concerns that the applicant's father would have and had access to the applicant's stepmother’s firearms (exhibit R2, p 43). They suspended her firearms licence and took possession of her firearms and ammunition, and her licence was revoked on 6 September 2023, the revocation being affirmed on internal review on 23 October 2023.

76. She then sought review in this tribunal on 7 November 2023, but the application was dismissed on 31 May 2024 as frivolous, misconceived and lacking in substance. At the hearing the applicant's stepmother submitted that the Tribunal had no jurisdiction to hear the matter or to provide the remedy she sought, which was “writs of certiorari and prohibition”. Other submissions included that the police appeared to be running “a political smear campaign in another attempt to confer jurisdiction upon themselves for the removal of [the applicant's stepmother's] licence and firearms”, and that their power to seize the firearms had not been proven.

77. She sought repeatedly to have the applicant's father speak on her behalf, her requests being refused. “During the hearing” the report states, “[the applicant's father] could clearly be heard and seen to be directing [the applicant's stepmother] on what to say and to challenge the Tribunal’s jurisdiction. [She] did not appear to make any comments or submissions without being directed to do so from [the applicant's father] and did not appear to understand her submissions or the Tribunal proceedings and on multiple occasions stated that she was suffering from anxiety and unable to continue” (id., 50).

78. The applicant submitted that all the applicant's father was doing was helping his wife to present her case, but the evidence suggests that he was actually attempting to manipulate her into advancing his arguments. Police repeatedly expressed concern that the applicant's father, and possibly his stepmother, possessed “sovereign citizen” beliefs. If so, that could be viewed as a matter of political opinion, but his apparent inciting of the applicant's stepmother to pursue an impossible review application under his close direction is relevant to the domestic circumstances issue.

79. [Not for publication]

80. [Not for publication]

81. [Not for publication]

The applicant's partner’s mental health

85. It was not disputed that the applicant’s partner had performed an act of self-harm on 20 October 2023. Ambulance officers conveyed her to a local hospital pursuant to s 20 of the Mental Health Act. The applicant strongly disputed that she had been conveyed to hospital under s 20 but, as was explained above, that belief was mistaken.

86. The applicant's partner’s self-harm attempt appears to have been a reason for the imposition of the special condition on the applicant’s firearms licence on 23 November 2023, a little over a month after the act in question (exhibit R1, p 36).

87. When attending police asked the applicant what had motivated the act, he replied that it was “personal” and would not elaborate further. He did, however, say that she had “a short history of self-harm”, but had not self-harmed for a number of years. In his affidavit the applicant stated that his partner “sees a psychologist regularly since the event in question who believes that she is not a realistic threat to herself and others” (exhibit A1, p 12). There is no evidence before the tribunal about the applicant's partner’s past or current mental health from any mental health professional or from the applicant's partner herself.

Evaluation – Domestic circumstances

88. The respondent does not submit that the applicant himself is not a fit and proper person to hold a licence. He was not an active participant in the conduct described in the respondent’s evidence except as regards the incident on 12 April 2015 in which some horseplay among two teenage brothers escalated out of hand and resulted in a third brother calling the police. A stern warning was issued but no other action was taken. The main significance of the evidence is as an instance of police intervention at the applicant's father's property being required. It also illustrates a somewhat less than cooperative attitude of the brothers, none of whom would make a statement to police.

89. The next incident at the applicant's father's property occurred on 1 January 2021, when the applicant himself called police over an incident with his father, who prevented him from leaving the property and withheld his car keys. During the call, the applicant said his father was armed with a crowbar, but did not say it was being used in a threatening manner. Neither party would give any information to attending police, the applicant being evasive and his father saying, “nothing happened”, which was clearly not the case.

90. The applicant's father also told police he was recording them and declined to give his surname and date of birth. The applicant said he later thought that his father had been acting to prevent him from driving after drinking on New Year’s Eve, which might well have been the case, but the applicant's father’s behaviour towards police is hard to reconcile with the applicant’s portrayal of him as “a model citizen”, notwithstanding his praiseworthy conduct in the 2019-2020 bushfires.

91. The most serious incident involving the applicant's father began on 7 January 2019 following a dispute with his brother-in-law the previous November about a missing piece of machinery valued at about $1000. At an arranged meeting in a nearby park, the applicant's father approached his brother-in-law aggressively, saying “are you calling me a liar?” and causing the brother-in-law to believe he was about to be struck, and therefore beginning to back away, turning to run. He was knocked to the ground by what he believed to be a push by the applicant's father, who jumped on top of him and violently assaulted him repeatedly causing injuries requiring ambulance treatment. Police feared ongoing violence by the applicant's father and obtained a provisional AVO for the protection of the brother-in-law (exhibit R2, p 10).

92. The sequel to the 7 January incident was also serious. When police arrived at the applicant's father's property on 10 January 2019 to arrest the applicant's father, he immediately denied the incident and began to argue with police, claiming he was within his rights under the Constitution and refusing to hand over his firearms to police when told there was an AVO against him. He grappled with police and tried to escape from them, while police were attempting to restrain and handcuff him, which he resisted. Eventually he was subdued by means of an OC spray, arrested and taken to the local police station. He initially refused to say where his firearms safe keys were or tell police the PIN number of the safe, but relented once police began arranging for a locksmith to open the safe.

93. The applicant's father was charged with the offences listed above, including assault occasioning actual bodily harm, resisting arrest and not surrendering a firearm when his licence was suspended. He was made subject to a 10-month community correction order, fined and ordered to pay compensation for damage to a watch worn by one of the officers. The applicant said that his father's solicitor had a video recording showing police gratuitously assaulting the applicant's father, but no such video was tendered at the hearing.

94. The respondent submitted that the criminal conduct with which the applicant's father was charged was very serious, as was emphasized by the fact that it had since been declared a prescribed offence under the Firearms Act (Crimes Act 1900, s 60(1AA)). Further, the submissions noted that after the applicant's father’s firearms licence was suspended on 10 January 2019, the applicant's stepmother lodged an application for a licence on 14 February 2019, which was granted on 28 March 2019, but subsequently revoked on 6 September 2023. Just over a month later, on 18 October 2023, the applicant applied for a licence based on a permission to shoot on the property authorised by the applicant's father. The applicant resides on the property owned by his father in a dwelling only a few metres from the main residence where both his father and stepmother reside and proposes to use and store the firearms on the property.

95. In Emery v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 122 (Emery) the Tribunal considered the case of an applicant whose licence had been revoked over concerns that his son would seek to gain access to his firearms to self-harm. The son lived on the same property in a separate residence about 50 m from the main residence, knew where the firearm was stored and in the absence of evidence about his medical condition the tribunal determined that the security measures were not sufficient and that it could not be satisfied that the applicant could exercise continuous and responsible control over the firearm, given his domestic circumstances (at [41]).

96. The respondent also contended that when one considers the chronology of the licensing history of all three people, it becomes apparent that the applicant's stepmother (and then the applicant) applied for their licences following the revocation of the applicant's father’s firearms licence. The respondent contends that the timing of the applications raises concerns that the applicant is simply attempting to ensure firearms are accessible at the property. It was also submitted that it is likely that the applicant's father would seek to circumvent the requirement for a licence and continue to access the firearms on his property, and that both the applicant's stepmother and the applicant may have sought to facilitate that through their applications.

97. The applicant pointed out that the January 2023 incidents were the only instances of violence on his father’s record. He contended that on that occasion his father was forced to defend himself from his brother-in-law. The evidence, however, pointed to the applicant's father being the aggressor. The applicant also submits that as his brother at all relevant times had a valid license, he was able to control vermin on the applicant's father's property and there was no need for anyone to attempt to circumvent the licensing requirements. But his brother’s holding a licence would not necessarily be inconsistent with the motive of his stepmother or the applicant obtaining a licence permitting use and possession of firearms on the property.

98. The applicant referred to Finlay v Commissioner of Police [2020] NSWCATAD 5 in which I set aside the licence revocation of an applicant whose son lived in a dwelling some 150 m away from his father’s. The son was on bail on charges of being part of a criminal group, assisting crime and stealing property as a clerk or servant. He had some firearm storage contraventions but no record of firearms use offences, indeed he was not known to shoot at all. He had no history of criminal violence and seldom entered his father’s house at all.

99. The applicant submitted that while his father owned the property, the applicant held a tenancy from his father. But his father’s residence was only some 5 m away. They both work in the family business and the applicant acknowledged that they are a close family and the evidence suggests that the applicant's father has a rather controlling personality. The chronology of the licence applications suggests some coordination at least.

100. [Not for publication]

101. The incident during the safe storage inspection on 23 May 2023 when the applicant's stepmother became confused about the makes and types of some of the firearms she was producing to attending police may not necessarily by itself be strongly probative of a collusive attempt to circumvent the legislation or of some measure of coercive control. The same cannot be said of the tribunal hearing of 31 May 2024 of the applicant's stepmother’s application for review of her licence revocation.

102. The record of the hearing in the information report (exhibit R2, pp 49 – 51) relates that the applicant's father’s licence had been suspended on 15 January 2019 following the domestic violence incident. At the time of his arrest, it became clear to police that he held strong Sovereign Citizen beliefs. The applicant's stepmother obtained a licence shortly after the suspension of the applicant's father’s and took possession of the firearms previously owned by him. On 23 May 2023 the applicant's stepmother’s licence was suspended and subsequently revoked following the safe storage inspection as a result of concerns that she had obtained her licence and was holding her firearms under the direction of, and for the benefit of, her husband.

103. On 7 November 2023 the applicant's stepmother applied to this tribunal for review of the revocation decision, but at the hearing submitted that the Tribunal had no jurisdiction to hear the matter or provide the remedy she sought, which was certiorari and prohibition. She alleged a political smear campaign by police with the ulterior motive of two confer on themselves the power to remove her licence and firearms and that their power to seize the firearms had not been proved.

104. The applicant's stepmother made multiple requests to allow the applicant's father to speak on her behalf, or to appear as her agent, but her requests were refused. During the hearing the applicant's father could clearly be heard and seen to be directing her on what to say and to challenge the Tribunal’s jurisdiction. She did not appear to make any comments or submissions without being directed to do so by him and did not appear to understand her submissions to the Tribunal. On multiple occasions she said she was suffering from anxiety and unable to continue. Police believed that her application and submissions were done on the direct instruction and coercion of the applicant's father. The application was ultimately dismissed as frivolous, misconceived and lacking in substance.

88. That report constitutes evidence of coercion or controlling behaviour by the applicant's father aimed at using a family member, his wife, to engineer an outcome favourable to his objective of retaining access to firearms. It also lends weight to the respondent’s contention that Annette’s conduct during the safe storage inspection was evidence of such coercive or controlling behaviour. The applicant submits that those submissions are based on speculation and suspicion rather than evidence, but as can be seen, that is not the case.

89. Further, the applicant and his father both work in the family business, which is based at the applicant's father's property. They reside in houses on the property. The applicant acknowledges that they are a close family. The risk that the applicant's father might gain access to the applicant’s firearms cannot be dismissed as purely theoretical.

90. There is also the evidence of the applicant's partner’s mental health problems. Following the admitted act of self-harm on 20 October 2023, she was conveyed by ambulance to a local hospital under s 20 of the Mental Health Act. The applicant told attending police that she had a short history of self-harm and in his affidavit stated that she “sees a psychologist regularly since the event in question who believes that she is not a realistic threat to herself and others”. There is no evidence from any mental health professional, or from the applicant's partner herself, including on the risk of a further attempt at self-harm, and if such an attempt were made, whether a firearm would be likely to be used. There is only the evidence of the self-harm attempt following a “short history” of self-harm and a resulting course of treatment by a psychologist.

91. The totality of the evidence on this issue gives reasonable cause to believe that the applicant might not personally exercise continuous and responsible control over firearms because of the applicant’ as domestic circumstances within the meaning of s 11(4)(a) of the Act, and I so find.

Public interest

109. The other ground on which the respondent relies as supporting licence refusal is that it would not be in the public interest for the applicant to hold a firearms licence. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

110. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

111. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24], the Tribunal stressed that public safety is to be given paramount consideration.

112. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66].

113. Thus, in Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “[i]n determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

114. The respondent expressed serious concerns that the applicant, his stepmother and father in attempting to circumvent the licensing scheme, or alternatively that there is a real concern that the applicant's father may coerce the applicant into giving him access to the firearms, noting his serious criminal history and his conduct at the hearing of the applicant's stepmother’s appeal. The respondent contends that storing firearms on a property where someone with serious criminal convictions resides is contrary to the public interest in circumstances where the applicant's father is unauthorised to possess firearms because of serious criminal conduct, including a conviction for resisting an officer in the execution of duty, and the applicant applied for his licence shortly after the applicant's stepmother’s licence was revoked.

115. The respondent also expressed concerns about the applicant's partner’s very recent self-harm incident. She not only resides on the property but shares the same residence as the applicant, where it is proposed the firearms will be stored. Consistently with the Tribunal’s findings in Emery (at [41] – [42]), it was submitted that the overriding obligation to ensure public safety in accordance with the Act must be determined, and in the absence of evidence that the risk concerning the applicant's partner has abated, the Tribunal should not set aside the refusal decision.

116. The applicant cited Rondo in support of the proposition that some factual basis for a reasonable suspicion must be shown and argued that there is no evidence that his father has ever been, or would ever be, in possession of firearms while unlicensed. The evidence is referred to above, including the chronology of the licence applications, the applicant's stepmother’s reporting of address particulars and the conduct of her tribunal appeal. The applicant argued that “[t]he respondent is trying to justify the use of discretionary powers. This was addressed in the High Court ruling of George v Rocket [scil. Rockett] (1990)” [citation not given]: (1990) 170 CLR 104, [1990] HCA 26, [14] (exhibit A1, pp 7, 8). The case does not refer to discretionary powers.

117. Again with reference to discretionary powers, the applicant attributes to the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [29] the statement “[a] failure by the Minister to disclose to the Tribunal relevant material… denied procedural fairness and may amount to jurisdictional error”. The statement does not appear at the location cited or anywhere in the judgment, which does not deal with discretionary powers, but with fraud by a purported migration agent. These difficulties appear to result from the applicant’s admitted use of AI to find cases and summaries. Procedural Direction 7 was not in force when exhibit A1 was filed.

118. The applicant also argued that to suggest that one violent offence in which his father was not incarcerated is a serious criminal history is “reprehensible and seeks to extract more penalty out of the judicial ruling than was ever intended”. His penalty on conviction of a fine and a bond showed that the offences were minor in nature.

119. It is well established, however, that whether or not an applicant was formally charged with an offence or charges were proven beyond reasonable doubt, the tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proved 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 South Wales Police Force [2014] NSWCATOD 70, [30]). Further, the applicant himself has no recorded history of firearm authorisation that might demonstrate his ability to comply with the obligations attached to holding a firearms licence. The situation at the applicant's father's property, the behaviour of the applicant's father and his observed controlling tendencies as appear in the evidence above give rise to a real and appreciable risk of his gaining access to the applicant’s firearms should a licence be issued, with consequent danger to public safety. I so find.

120. The applicant acknowledges that his partner has been seeing a psychologist regularly since the self-harm event, and the psychologist believes she is not a realistic threat to herself or others. There is no documentary or oral evidence from a mental health professional or the hospital supporting that conclusion, however. Consistently with Emery at [41] – [42], in the absence of expert evidence that the risk concerning the applicant's partner has abated, it would be imprudent for the Tribunal to set aside the refusal decision. It may be noted that in Emery the applicant’s son, like the applicant's partner in this case, had not used a firearm in a self-harm attempt.

121. While the applicant has no criminal history, and he is not responsible for the main concerns described in the evidence summarized above, the authorities have settled that there is no basis for differentiating between conduct of a firearms licence applicant or licensee and the conduct of another which may impact on public safety in the context of firearms licence: Tolley v Commissioner of Police [2006] NSWADT 149, [31].

122. The Tribunal’s predecessor tribunal also held that a decision-maker should not shy away from exercising the discretion adversely to an individual merely because the applicant may suffer hardship or inconvenience or both: Hill v Commissioner of Police [2002] NSWADT 218, [22]. The applicant is likely to suffer hardship or inconvenience from licence refusal, as he states that the rural property on which the family lives is affected by destructive feral animals and vermin.

123. Nevertheless, holding a licence is “conditional upon the overriding need to ensure public safety” (id., [15]). Further, the tribunal has held that “[w]here there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm” (May v Commissioner of Police [2001] NSWADT 82, [54]). The totality of the evidence at present available leads to the conclusion that there would be a real and appreciable risk, as that phrase is understood in Webb, to public safety should the applicant be authorised to possess firearms. It would therefore not at present be in the public interest for the applicant to hold a firearms licence, and I so find. The discretion in s 11(7) should be exercised in favour of affirming the decision under review.

Orders

1. Decision under review affirmed.

2. Pursuant to s 59 of the Administrative Decisions Review Act 1997, the Respondent (“the Commissioner”) not be required to lodge copies of the documents or parts of documents (“the Protected Material”) specified in the confidential statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (“the Confidential Statement”).

3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the confidential material and confidential exhibit CR3, or matters contained in the confidential material and confidential exhibit CR3 is prohibited.

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

5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 May 2025