Madziala v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 269

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269

Hearing dates:

19 June 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Respondent’s decision to refuse the Applicant’s application for a Category AB firearms licence is affirmed

Catchwords:

ADMINISTRATIVE REVIEW – Licensing – Firearms – criminal history – OMCG – domestic violence – aggression - traffic history - regulatory schemes - public interest –– public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Aubrey v Commissioner of Police [2005] NSWADT 266

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Director of Public Prosecutions v Smith (1991) 1 VR 63

Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60

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

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156

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

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

Loye v Director General, Department of Transport [2000] NSWADT 145

Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43

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

Mewburn v Commissioner of Police (2009) NSW ADT 24

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Sawires v Commissioner of Police [2010] NSWADT 4

Tannous v Commissioner of Police [2011] NSWADT 116

Vella v Commissioner of Police [2003] NSWADT 91

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Wiltshire v Commissioner of Police [2005] NSWADT 75

Category:

Principal judgment

Parties:

Edward Madziala (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant self-represented

Solicitors:
Maddocks Lawyers (Respondent)

File Number(s):

2020/00359308

Publication restriction:

Paragraph 23: not for publication pursuant to s 64(c) and 64(d) of the Civil and Administrative Tribunal Act 2013

reasons for decision

1. Edward Madziala (the Applicant) had a history of violence and aggression between 1979 and 2000, including criminal charges for attempted murder, multiple counts of sexual assault and break and enter, and serving a term of imprisonment for a domestic assault charge in 1988. He was the subject of multiple police reports for complaints of violence and aggression in this time period and was the subject of three apprehended violence orders in the mid to late 1990s.

2. Since 1978 the Applicant has also received at least 40 traffic infringement notices, been disqualified from driving by a court on 5 occasions, and has received three loss of licence demerit point cancellations, the latest occasion being in 2013.

3. The Commissioner of Police, NSW Police Force (the Respondent) is responsible for assessing applications put to it for licences and permits to possess and use firearms under the Firearms Act 1996 (the Act) and approving, refusing, suspending, revoking and renewing firearms licences as applicable under the Act.

4. Sometime between 30 May 2018 and 20 June 2018 the Respondent received an application for a Category AB firearms licence from the Applicant, which included the genuine reasons of sport/target shooting and recreation hunting/vermin control. On 12 October 2018 the Respondent asked the Applicant to provide a report to the Firearms Registry from a psychologist/psychiatrist in relation to his mental health and suitability to possess a firearm. The Applicant provided a report from Dr Mark Bell on 6 February 2019 which was considered by the Respondent to be deficient and so on 8 February 2019 the Respondent sent a follow up request for the correct mental health risk assessment to the Applicant and his general practitioner.

5. The Applicant provided a further letter from Dr Mark Bell dated 13 March 2019, which outlined that he had no concerns over the Applicant’s mental health and that he had never treated the Applicant for a mental health issue.

6. On 10 December 2019 the Respondent refused the Applicant’s firearms application on the basis of information that the Applicant “may have a health problem related to drugs, alcohol or a mental disorder or illness” and no psychiatric assessment had been received responding to those issues. On 2 January 2020, the Applicant lodged an Internal Review Request with the Respondent, submitted that he had inquired through Grafton Mental Health who had no records of him ever being under the care of Taree Mental Health.

7. On 9 November 2020, the Respondent issued the internal review decision, which affirmed the decision to refuse the Applicant’s application for a firearms licence (the Reviewable Decision). The Reviewable Decision did not place emphasis on the Applicant’s potential mental health concerns, instead relying on the Applicant’s extensive criminal history and traffic history to support the Respondent’s refusal of the licence application. On 9 December 2020 the Applicant lodged an Application in the NSW Civil and Administrative Tribunal for administrative review of the decision.

Legal Principles

8. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.

9. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety:

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

…

(2) The objects of this Act are as follows:

…

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

…

10. The power to grant an application for a firearms licence under s 11 of the Act is “tightly constrained” and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

11. Section 11(7) of the Act provides 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 expression “public interest” is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

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

12. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, it was stated at 681:

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

13. In Director of Public Prosecutions v Smith (1991) 1 VR 63 the Court observed:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

14. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

15. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.

16. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].

17. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at [76] that “the Applicant’s traffic history shows a disregard for public safety and his own safety as he repeated traffic offences”. The Senior Member determined at [81] that:

The Applicant’s repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.

18. Where there has been or is the possibility of a threat to public safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

Consideration

Applicant’s criminal history

19. The Applicant has an extensive criminal history in NSW between 1979 and 1996 with convictions recorded against him for domestic assault, common assault, resisting police, malicious damage, drug offences and traffic offences. During that period, the Applicant was charged with more than 50 offences including sexual assault, break and enter, dangerous driving and attempted murder:

1. In 1979 he was charged with stealing and littering;

2. In 1980 and 1981 he was charged with possessing and smoking ‘indian hemp’;

3. In 1981 he was charged with ‘break enter & steal’ and ‘false pretences’;

4. In 1982 he was charged with assault and robbery;

5. In 1983 he was charged with ‘receiving’ and assault;

6. In 1985 he was charged with ‘possess indian hemp’;

7. In 1986 he was charged with stealing, attempted murder, malicious wounding, and maliciously inflicting grievous bodily harm with intent;

8. In 1988 he was charged with malicious damage, assaulting a female in a domestic violence context and 6 counts of sexual assault;

9. In 1989 he was charged with assault, malicious damage, resist police, offensive language, and possessing restricted substance;

10. In 1994 he was charged with assault (domestic violence).

20. Although he was not convicted of all the charges laid over the years, the Applicant was sentenced to 12 months hard labour in 1981 for break, enter and steal, to 2 months hard labour in 1983 for an assault, and to 3 months imprisonment in 1988 for assault (domestic violence). He was also fined on multiple occasions and subject to supervised probation and community service orders. He was the subject of three AVOs between 1994 and 1999 taken out against him by his former partners and daughter, although the AVO taken out by his daughter was subsequently dropped.

21. The Respondent’s evidence included COPS entries and bail reports for the criminal charges and convictions which occurred prior to 1995, and the complaints subject of the AVOs issued in 1994, 1995 and 1999. The COPS entries additionally referred to incidents in 2000 when complaints were made against the Applicant for “threatening other members of the public by using a pistol motion with his hands and telling them it was payday”, exhibiting bizarre behaviour such as “aggressively accusing people of putting glass in his water tank and being watched constantly”. In relation to the 1999 AVO sought by his daughter and complaints made by members of the public in 2000, victims of the Applicant’s behaviour did not wish to take matters further due to feared repercussions. The COPS entries in 2000 refer to mental health concerns and discussions with the mental health team to have the Applicant scheduled, which were unsuccessful.

22. In his evidence and under cross examination the Applicant sought to minimise or deny the conduct subject to the AVOs which were issued in 1994, 1995 and 1999, submitting that he hadn’t assaulted the women involved, and they had ulterior motives for seeking the orders. In relation to his criminal history he stated that he had been a member of the Life and Death OMCG until 1999, and it was in this context that he had been charged and convicted of the various criminal offences. He said that he hadn’t associated with the members of that OMCG since 1999 and had tried to make significant changes to his life since then. He admitted to using prohibited drugs prior to 1995 in the context of his OMCG association. He submitted that he had “not been involved in anything, not been a criminal for ten years. I haven’t been charged with any offences in the last ten years. I’ve stayed away from everything like that. I’ve done my best to stay away from criminal activity”. He asked “How long do you need to live the change before it’s recognised?”. The Applicant drew the Tribunal’s attention to purported inconsistencies and errors in the various COPS reports and denied a history of mental illness, alleging this was fabricated by the Police.

23. [NOT FOR PUBLICATION]

Traffic history

24. Since obtaining a New South Wales drivers licence in 1978, the Applicant received more than 40 traffic infringement notices, three loss of demerit point cancellations, and has been disqualified from driving by a court on 5 occasions:

1. Driving unlicensed in 1982 and driving under the influence of lower range prescribed concentration of alcohol in 1983;

2. a conviction for low range drink driving on 20 April 1983 and disqualification from driving for two months;

3. exceeding the speed limit by more than 30 km/h on 22 July 1986 and 6 October 1987;

4. driving in a dangerous manner on 21 August 1986 which resulted on 19 February 1988 in a conviction and a disqualification from driving for 18 months and a 3 year good behaviour bond (which was evidently breached);

5. a conviction for driving with a cancelled licence on 22 March 1987;

6. a conviction for driving in a dangerous manner on 12 December 1987, resulting in a disqualification from driving for five years;

7. a conviction for driving whilst disqualified on 12 August 1992, resulting in a further disqualification from driving for 12 months;

8. a conviction for driving with a cancelled licence on 22 July 1995, resulting in 1996 in a six month disqualification and a 12 month good behaviour bond.

25. On each occasion prior to 1996 that the Applicant was disqualified from holding a licence, or his licence was cancelled, he continued to drive while disqualified. There is also an extensive history of speeding fines which have resulted in his demerit point suspensions. Between his disqualification in 1996 and 2000 there are no adverse traffic history reports. Between 2001 and 2013 the Applicant was caught exceeding the speed limit on several occasions, and his licence was again suspended in 2013.

26. In his written evidence the Applicant noted that he had received one minor traffic infringement since 2013, for speeding, on 14 March 2021. This had resulted in the loss of one demerit point.

Character evidence

27. The Applicant provided written personal references from Susan Mitchell, Belinda McPhillips, Philip Cross, Terry Swan, Glen McPhillips and Kate Asquith. These can be described as general character references from his friends, neighbours and a former landlord, dated from 2013 to 2021. Only those from Philip Cross and Terry Swan made any reference to the purpose for which they were being provided to the Tribunal in these proceedings, and referred only in passing to the Applicant’s criminal history. None of the references addressed his traffic history. The Applicant submitted that those referees who did not mention his criminal charges and firearms licence application knew that this was the purpose for which they were providing the reference, but I reject this submission as being unsupported by the objective evidence contained in those character references. I give the references from Philip Cross and Terry Swan extremely limited weight, and give no weight to the remaining character references, in line with authority in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, where the Appeal Panel said:

[40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.

Personal and public interest

28. The Respondent submitted that it would be contrary to the public interest for the Applicant to be issued with a firearms licence because of his extensive criminal history and extensive history of traffic infringements, demonstrating a disregard for regulatory schemes designed to ensure public safety.

29. The Applicant submitted:

… I haven't had a criminal charge since 1996, 25 years ago. I have removed myself and stayed away from that environment for over 25 years. This is a lengthy period of stability and resolve. Any reasonable member of the public would consider after 25 years without a criminal charge that I have changed and that no appreciable risk exists to the public for myself to hold a AB firearms licences.

In Mewborn v Commissioner of Police (2009) NSW ADT 24 [sic] the Tribunal set aside a refusal by the Commissioner's delegate to grant a licence. Mewborn had been convicted of Assault Occasioning Actual Bodily harm, but had removed himself from the stressful relationship and surroundings, and there had been no subsequent offences committed during the exclusion period that follows a conviction for a serious assault.

In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

I acknowledge my traffic/criminal record in the past is not good. I sincerely regret the harm and damage done as a result to all involved.

30. The Applicant submitted that he applied for the firearms licence:

… to learn and enjoy the Sport of Target Shooting while making new friends with people who enjoy a common interest. Recreational Hunting / Vermin control provides personal health benefits and the enjoyment in spending time on rural land and can provide food for myself and a service to others.

31. He indicated an intention to start a small business selling pet food from hunting and shooting vermin, but “thought I wouldn’t get a hunting licence” so applied for an AB licence because “I have to start somewhere”.

32. There is no question that the public interest overrides any personal interest the Applicant may have in obtaining a firearms licence. Assessing the potential for risk to public safety is the subject of almost every firearms review application in this Tribunal. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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].

33. The decision in Mewburn v Commissioner of Police (2009) NSW ADT 24 referred to by the Applicant is an example of the finely nuanced approach the Tribunal sometimes has to make in determining whether there is a risk to public safety in circumstances of an applicant’s previous criminal offences and history of domestic abuse. In that matter, the Tribunal was persuaded by Mr Mewburn's responsible use of firearms over many years in the context of his “trying domestic and family circumstances” that despite his criminal and traffic infringement history, he “has always had a responsible attitude to firearms and is well aware of the need for safety and proper security of firearms”. The length and seriousness of the Applicant’s criminal history and the quantity and persistence of his repeated traffic offences in these proceedings is far more significant than the circumstances considered by the Tribunal in Mewburn, and there is no ‘positive’ evidence of compliance with firearms legislation in these proceedings to weigh against any potential for risk to public safety.

34. Many factors need to be weighed in forming a view as to the risk to the public, and each case turns on its factual circumstances. The evidence demonstrates that the Applicant has left his criminal history decades behind him, and I accept that he has done his best to “stay away from that lifestyle”, but I remain concerned that the Applicant does not fully appreciate the seriousness and illegality of his dangerous, violent and aggressive conduct, or its impact on others. This is based on his deflections of personal responsibility by attributing his criminal history entirely to his membership of an OMCG, explaining the attention of police after 1999 and various COPS entries of aggression as “the police having it in for me”, and his denial of documented domestic abuse. His failure to acknowledge and be remorseful for the harm he inflicted on others in the past demonstrates a real and appreciable potential risk to public safety in the future. As observed by the Tribunal in Fielden & Fielden v Commissioner of Police, NSW Police Service [2000] NSWADT 156 at [56]:

Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

35. In relation to his history of traffic infringements and offences, I am particularly concerned by the numerous occasions that the Applicant has been found to be driving unlicensed, after having his licence removed for speeding and dangerous driving violations. I acknowledge that his traffic violation history has improved in the past 8 years but he continues to be caught exceeding the speed limit. His lack of recent driving offences does not positively demonstrate to the Tribunal that he understands the importance of compliance with regulatory schemes, or the impact that non-compliance has on public safety. In line with the findings in Tannous v Commissioner of Police [2011] NSWADT 116 and Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, I consider the Applicant’s long history of repeated breaches of traffic laws and regulations to indicate a disregard for a regulatory scheme aimed at ensuring public safety.

36. I agree with the Respondent’s submission that there is a community expectation that those who are afforded the privilege of a firearms licence have maintained a lawful lifestyle and can demonstrate that they will be able to comply with the legislative requirements. The Applicant falls short of these community expectations.

37. The Applicant’s extensive history and his evidence in these proceedings indicates a disregard for regulatory schemes aimed at protecting the public, and also raises a risk that is inconsistent with the paramount consideration given to public safety by the licensing regime. It is not in the public interest for a person to be licensed to possess a firearm, where the person does not have proper regard to laws and regulatory schemes which seek to ensure public safety.

38. The correct and preferable decision is therefore to affirm the Respondent’s reviewable decision and refuse the Applicant’s application for a firearms licence.

Orders

1. The Respondent’s decision to refuse the Applicant’s application for a Category AB firearms licence is affirmed.

**********

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

Registrar

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: 16 September 2021