McCulla v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 39

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McCulla v Commissioner of Police, NSW Police Force [2024] NSWCATAD 39

Hearing dates:

29 June 2023, 17 July 2023

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Respondent’s decision to refuse the Applicant’s firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW - firearms – refusal of licence – AVO – history of aggression – safe storage – suspensions - attitude towards police - public safety – whether a fit and proper person – continuous and responsible control of firearms – whether of intemperate habits – whether of unsound mind – public interest.

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Firearms Regulation 2017
Road Rules 2014

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Bazouni commissioner of Police, New South Wales Police Service [2002] NSWADT 100

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

Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

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

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

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

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

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

FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127

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

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

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

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

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

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

Meggit v Commissioner of Police [2022] NSWCATAD 353

O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

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

Police v Toleafoa [1999] NSWADTAP 9

Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167

Sobey v Commercial and Private Agents Board [1979] 22 SASR 70

Vella v Commissioner of Police [2003] NSWADT 91

Ward v Commissioner of Police [2000] NSWADT 28

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

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Anthony Wayne McCulla (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
S Roden (Respondent)

Solicitors:
Mainstone Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2022/00260600

Publication restriction:

Paragraphs 65, 66, 67, 89 not for publication pursuant to ss 64(c) and 64(d) of the Civil and Administrative Tribunal Act 2013

REASONS FOR DECISION

1. On 15 October 2021, Anthony Wayne McCulla (the Applicant) applied for a Category AB firearms licence under the Firearms Act 1996 (the Act). The genuine reason specified by the Applicant was “recreational hunting/vermin control” and, in support of that reason, he provided evidence of his membership of a member of a hunting club. The Applicant provided a psychologist report prepared by Bradley Jones in support of his application. On 21 October 2021, the Commissioner of Police, NSW Police Force (the Respondent) advised the Applicant of the Decision to refuse the Applicant’s application for a Category AB firearms licence on the basis that it would not be in the public interest for the Applicant to be issued a firearms licence, because:

“Although the psychologist report [does] not reveal that you are suffering from any psychological problems, the psychologist advised that there were aspects of your testing results that merit further enquiry.

Your recorded domestic and behavioural incidents which required the involvement of police together with your criminal history raises questions about your ability to exercise continuous and responsible control over firearms without compromising public safety should you be issued a firearms licence.”

2. The Applicant sought internal review of the Decision on 25 October 2021, and supplied the Respondent with submissions in support of his internal review application on 18 November 2021. On 18 August 2022, the Respondent affirmed the Decision under a review, stating:

“I acknowledge that a person should not be penalised for any mental health issues they may have or have had in the past. However, this determination is protective in nature and not punitive. In my view, while the report provided by Mr. Jones [is] reasonably favourable, concerns regarding your suitability to hold firearms are not allayed by this report when considering you have come to Police notice on another occasion and engaged in argumentative and aggressive behaviour. This is particularly significant as you are currently subject to charges that have not yet been finalised in Court.

… Respectively, I cannot be certain that it is in the interest of public safety for you to become authorised with unfettered access to firearms at this time. In my view, the safety of the public is at the forefront of public scrutiny, and anyone authorised to possess and use firearms must be a person who does not prevent [sic; present] a risk to the safety of the public, including persons who have demonstrated argumentative behaviour with Police in public.”

3. On 1 September 2022, the Applicant applied to this Tribunal for administrative review of the Decision.

4. The proceedings were subject to a preliminary hearing on 30 May 2023 before Senior Member Ransome in relation to the Respondent’s application for confidentiality orders under the Civil and Administrative Tribunal Act 2013 (CAT Act). Those orders were granted in the following terms:

(1) Pursuant to section 49 of the Civil and Administrative Tribunal Act 2013, the hearing of this application, insofar as it relates to the information contained, and documents referred to, in the Confidential Affidavit (the Confidential Material) be conducted in the absence of the Applicant, his representatives and the public;

…

(3) Pursuant to section 59 of the ADR Act, the Respondent is not required to lodge copies of the documents referred to in the Confidential Affidavit;

(4) Pursuant to section 64(1)(c) of the CAT Act, until further order of the Tribunal, the publication of the Confidential Material and Confidential Affidavit or matters contained in the Confidential Material or Confidential Affidavit is prohibited;

(5) Pursuant to section 64(1)(d) of the CAT Act, until further order of the Tribunal, the disclosure of the Confidential Material and Confidential Affidavit or matters contained in the Confidential Material or Confidential Affidavit is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal; and

(6) Pursuant to sections 64(1)(b) and (c) of the CAT Act, until further order of the Tribunal, the publication and reporting of the hearing of this application, including any evidence given in the hearing, is prohibited.

5. These confidentiality orders were continued during the hearing of the substantive proceedings before me on 29 June 2023 and 17 July 2023 with respect to a confidential hearing that was held in the absence of the Applicant, and confidentiality orders made over the transcript of that confidential hearing and the evidence and submissions referred to and relied upon by the Respondent in that confidential hearing.

6. At hearing on 29 June 2023 and 17 July 2023 the Applicant relied on the following documents:

1. Statement of the Applicant dated 14 May 2023;

2. Psychologist assessment report by Bradley Jones dated 5 July 2021;

3. Transcript of Local Court proceedings 2022/00130939 in the matter of R v Anthony Wayne McCulla on 12 May 2023, being an application for costs for the Applicant following the withdrawal of charges against him, in which costs were granted;

7. The Respondent relied on the following documents:

1. Documents filed on 14 April 2023 pursuant to s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) (First Section 58 Bundle);

2. Supplementary documents filed on 9 June 2023 in accordance with s 58 of the ADR Act (Second Section 58 Bundle), comprising of the Affidavit of Dominic Nguyen sworn 9 June 2023 (Nguyen Affidavit), Exhibit DN-1 to the Nguyen Affidavit (Exhibit DN-1) and Exhibit DN-2 to the Nguyen Affidavit (Exhibit DN- 2);

3. Non-Confidential Affidavit of Cameron Nicholls affirmed 11 May 2023 and filed 12 May 2023 (Non-Confidential Nicholls Affidavit); and

4. Confidential Affidavit of Cameron Nicholls affirmed 11 May 2023 (Confidential Nicholls Affidavit) and the confidential exhibits to the Confidential Nicholls Affidavit.

8. Both parties provided the Tribunal with written and oral submissions, and at hearing the Applicant was cross examined. Mr Jones was not made available to the Respondent for cross examination.

9. The hearing on 29 June 2023 was adjourned to allow the parties to file any further evidence they wished to obtain, and provide them with a further opportunity to make submissions on such evidence. At hearing on 17 July 2023 the Respondent confirmed that it did not press its submission that the Applicant did not have a ‘genuine reason’ for the firearms licence.

10. For the reasons that follow, the Tribunal affirms the Respondent’s decision to refuse the Applicant’ firearms licence.

Legal Principles

11. 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, where the Respondent has refused to issue a licence to the Applicant. Section 63 of the 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.

12. 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,

…

13. 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 at [117].

14. Section 11 provides general restrictions on the issuing of a firearms licence. It provides, as follows:

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3) A licence must not be issued unless –

(a) 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; and

(b) …

(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant …

(4) Without limiting the generality of subsection (3) (a), 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—

…

(c)   the applicant’s intemperate habits or being of unsound mind

…

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

(8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.

15. In these proceedings the Respondent relied on ss 11(3), 11(4)(c) and 11(7) of the Act to refuse the Applicant’s firearms licence application.

Fit and proper person

16. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1 (Bond). In that matter the Applicant was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) that:

“The expression “fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper “cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. “

17. In the same case, Mason CJ stated at [63] that:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

18. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

19. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

20. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

21. The Applicant’s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

22. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

23. In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an 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: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].

24. There is a degree of overlap between the considerations relevant to an assessment of the public interest and those relevant to an assessment of an applicant’s fitness and propriety to hold a firearms licence: Bond at 348 (Mason CJ); see also Masterson v Commissioner of Police [2017] NSWCATAP 206 (Masterson) at [130]-[134]. Most importantly, fitness and propriety are also to be assessed in the heavily precautionary context of the Act, bearing in mind the overwhelming concern of the Act is to protect public safety.

25. Significantly, in this context, matters going to the fitness or propriety of an applicant to hold a firearms licence that may amount to or suggest criminal conduct need not be proven to a criminal standard: Joseph at [60].

Continuous and responsible control

26. In determining whether the Commissioner has established that the Applicant may not personally exercise continuous and responsible control over firearms, the Tribunal must objectively have "reasonable cause" to come to that conclusion based on established facts: Meggit v Commissioner of Police [2022] NSWCATAD 353 (Meggit) at [27].

26. The term “reasonable cause to believe” in the context of s 11(4) of the Act was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41]-[43]. There the Tribunal referred to the decision of Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 in which Emmett J stated that the words ‘reasonable cause to believe’ are

…not 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.

Public interest

28. Public safety, including the Applicant’s safety, is the primary focus of the public interest issue and of the Act generally: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134.

29. 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.”

30. 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. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the 'public interest' is:

‘… an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.’

31. 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.

32. 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.

33. 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. A discretion to make a decision ‘in the public interest’ is not confined except by the scope and purposes of the legislation itself: DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15], referring to O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson, Gaudron JJ. The discretion must be exercised to promote the objects of the firearms legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

34. As stated by the Administrative Decisions Tribunal in Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276:

‘The Applicant’s individual interest in retaining his Category AB Firearms Licence must be subordinate to the public interest in ensuring public safety.‘

35. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the “fit and proper person” test, but the formulation has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson at [130].

36. Since then, Hennessy DP cautioned against applying that language in a mechanistic way, noting in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that:

“The ‘virtually no risk’ comment was made in the context of the ‘fit and proper person’ test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests”.

37. Other cases have pointed out that 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: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66], Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32].

38. In determining whether an individual holding 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 the individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed. The fact that charges have not been established to the criminal standard against an applicant is irrelevant: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 (Joseph) at [62] to [64]. it is well established that it is an applicant's conduct, not their conviction that is of concern to the Tribunal: Bazouni commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [301].

39. 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.

40. 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].

41. 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].

42. 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 at [117].

The evidence

Respondent’s evidence

43. The s 58 documents included the Applicant’s firearms licensing history, criminal history and copies of COPS events detailing the Applicant’s interactions with police between 2012 and 2022.

44. The Applicant was first issued a Category AB firearms licence on 7 September 1998, which was then subsequently reissued on 3 occasions. The Applicant was also issued a shooter licence on 2 July 1988 which expired on 2 July 2021, and was issued a two shooter licence on 3 September 1992 which was cancelled on 30 June 1998. On 4 June 2014, the Applicant’s licence was suspended following an alleged domestic violence incident (the first suspension). That suspension was lifted on 11 September 2014 after the related charge and ADVO were dismissed. On 18 October 2020, the Applicant’s licence was suspended again following an incident between the Applicant and police (the second suspension). The Respondent required the Applicant to then complete a Mental Health Risk Assessment. This was not received within time, as a result of which the Applicant’s licence was revoked on 18 January 2021 pursuant to sections 24(2)(c) and 24(2)(d) of the Act. The Applicant applied for internal review of this decision, but this was refused because the licence had expired by the time the request for internal review was made. The Applicant had then made a new application for a firearms licence, which became the subject of these proceedings.

Criminal history

First incident: Incident on 23 June 2012 at Shire Hydraulics (the 2012 malicious damage incident)

45. In 2012, the Applicant was charged with malicious damage under s 195 of the Crimes Act 1900 in relation to damage to property at Shire Hydraulics. The Applicant was found guilty of this offence and sentenced by the Sutherland Local Court to a 12-month good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 and ordered to pay compensation.

46. The facts of the offending as described in the Fact Sheet are summarised as follows:

1. On 23 June 2012, the Applicant telephoned Shire Hydraulics to enquire if he could attend the store. The owner of the store informed him that she would not be at the store for much longer. One and a half hours after this phone call, the Applicant attended Shire Hydraulics where he discovered that the store was closed. He used a permanent marker to write on the front door of the store:

“Thanks very much bitch you couldn’t fucken wait like you promised fuckwit.”

2. When confronted by police about this incident, the Applicant denied writing on the door of the store. He explained that he was going to leave a note for the store but then threw the note in a rubbish bin.

Second incident: Incidents on 1 June 2014 and 5 June 2014 with Applicant’s ex-partner (the 2014 domestic violence incidents) and the first suspension

47. In June 2014, the Applicant was charged with intentionally or recklessly damaging property under s 195(1)(a) of the Crimes Act 1900 and, subsequently, contravening a prohibition or restriction in in an ADVO under s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. These charges were dismissed by the Sutherland Local Court, along with the underlying ADVO.

48. The Facts Sheets for these charges describes these incidents, summarised as follows:

1. The Applicant’s former partner (RB) ended her relationship with the Applicant on 4 occasions because of his “aggressive character” and aggressive behaviour towards people “for no reason”. On 1 June 2014, the Applicant attended RB’s house and refused to leave despite being asked to by RB. The Applicant allegedly yelled at RB:

“No I’ll see you tomorrow, I will drag you out”.

2. The Applicant kicked the front door of RB’s house around 5 times and then left. The door had extensive damage; the lock was broken and there was a large crack on the side of the door. RB also noticed that the electronic gate was not working as all the controls had been pushed in. RB informed police that she was fearful for her safety due to the Applicant’s aggressive and unpredictable behaviour. The police issued an ADVO, prohibited him from, among other things, approaching RB and required him to surrender his firearms and licence to police.

3. On 5 June 2014 at 10:30am, while the subject of the ADVO, the Applicant stood outside a restaurant where RB was working and tried to speak to her about the incident on 1 June 2014.

49. Several years later, RB reported that on 23 December 2019 at 7:20pm, the Applicant again attended RB’s house uninvited and approached the front door. RB reported this incident and her fear that the Applicant may attend her house again or be following her when she is unaware. At the time, the Applicant refused to provide an explanation for his attendance at RB’s house to police.

50. As a result of this incident, police attended the Applicant’s residence on 24 December 2019 to confiscate his firearms, subject to a 28 day “cooling off” period. The Applicant refused to answer questions and complained that his firearms had been covered in exhibit tape the last time they had been confiscated.

Third incident: Incident on 20 January 2019 (the 2019 public punching incident)

51. While still subject to the 28 day cooling off period following the confiscation of his firearms on 24 December 2019, on 20 January 2019, the Applicant is alleged to have engaged in an altercation with a member of the public, RC. RC’s statement to police indicated that the following occurred:

1. RC’s car was parked on the side of the road. The doors of his car were open so he could place his daughters inside the car. RC heard a large bang from the rear passenger door and one of his daughter’s scream, as she had been hit by the force of the door closing. RC observed a man, believed to be the Applicant, running along the road and believed was the person who had slammed the door shut on his daughter. RC yelled out to the man three times to get his attention, however the man ignored him.

2. A short time later, whilst driving, RC observed the Applicant running on the side of the road. RC parked his car and yelled out to the Applicant multiple times (including “you hit my daughter”), however the Applicant did not respond but continued to run towards him with speed.

3. Upon approaching RC, the Applicant allegedly dropped his right shoulder and made contact with RC’s chest. RC and the applicant then began punching each other.

52. Witnesses reported that both the applicant and RC were punching each other. No charges were laid as a result of this incident against either the Applicant or RC.

Fourth incident: Safe storage inspection on 2 October 2020 (the 2020 Safe Storage Inspection)

53. On 2 October 2020, police contacted the Applicant to arrange a firearms safe storage inspection (SSI), which was required prior to the return of the Applicant’s confiscated firearms. During a telephone call with the Applicant, the Applicant yelled at police “you have to have my guns professionally cleaned and repaired before I collect them” and continued being verbally aggressive until he was informed that his behaviour was unacceptable and may indicate unsuitability to hold a firearms licence.

54. Police attended the Applicant’s house at 52 Grays Point Road to conduct the safe storage inspection, during which it became apparent that the Applicant’s firearms storage safe did not meet the requirements of the Act and Firearms Regulation 2017. The Applicant was informed that he had failed the inspection and that a new safe would need to be installed and that the room would need to be free of power tools. The Applicant argued with police about the required safe storage standards and began raising his voice, arguing about police authority, including the following exchange (where the Applicant is referred to as POI):

Police said - "Firearms use and ownership in NSW is a privilege. It's not like the US were they have a constitutional right to bear arms"

POI said - "Well, have you read the NSW Bill of Rights?"

Police said - "No"

POI said - "Well, the Bill of Rights declares that citizens of NSW are entitled to bear arms unless the Government prohibits otherwise".

Police said - "Look if you want to get your firearms back, you need to comply with the minimum standards as set out by the Commissioner of police. This information is readily available on the NSW Firearms website. I am happy to email a copy to you if you haver an email address.

POI said - "Are you going to put it on the record?"

Police said - "We record everything"

POI said - So that will be on a Government system?"

Police said - "Yes"

POI said- "I value my privacy. I'm not giving it to you."

Police said - "No worries that's your choice"

POI Said - "Can you send it me a link in a text message?"

Police said - "Sure".

55. The following day, the Applicant telephoned police and had the following further exchange:

POI said - "What are you going to do with that photograph you took yesterday?"

Police said - It will form a part of the official police report. It will demonstrate why the inspection failed".

POI said - "The report is made on a Government system?"

Police said - "Yes it is. It is a secure system".

POI said - "Ok"

56. The Applicant requested further information as to where to purchase a compliant safe from, and was advised that he could visit a gun shop or a hardware store such as Bunnings.

57. On 9 October 2020 the police attended the Applicant’s residence again and conducted a further safety inspection. The COPS report details the following:

The POI escorted police to the sub-level beneath the garage. Police entered the room which was full of various shelving, long life food items, cloth sheets and furniture. Police navigated their way through the room to to the back corner where a new black firearm safe constructed of mild steel had been installed.

The POI opened the safe door which was secured to the concrete floor and brick wall by four 20mm bolts. The safe was secure and flush against the wall.

The POI was informed that the safe and the manner in which it had been installed was acceptable and that the inspection passed.

The POI was advised that the police report would be updated and he would be permitted to collect his firearms.

Fifth incident: Incident on 4 October 2020 between NSWPF and the Applicant (the 2020 confrontation with police incident)

58. On 4 October 2020, the Applicant had an argument with police which was captured on police body worn camera (BWC) footage. According to the COPS report of the incident, police observed the Applicant running through and obstructing heavy traffic. Police noted that he appeared extremely agitated. The Applicant then began to take photos of the police vehicle. As a result of his unusual behaviour, the Applicant was given a verbal move on direction which he did not obey.

59. The BWC footage shows that after being given the verbal move-on direction the Applicant becomes further agitated and continued to argue with the police officers, including making allegations that the police officers had broken road rules, saying, “You’ve done an illegal and unsafe turn across the double yellow lines”.

60. During the interaction, a police officer asked the Applicant whether he was suffering from a mental illness, explaining that she asked this on the basis of his agitation. The Applicant accused the police of harassing him as a result. The Applicant was then given an official move-on direction by police and ran away from the scene.

Second suspension

61. On 18 October 2020, Police suspended the Applicant’s firearms licence for a second time, on the basis of his interactions with police. On 14 October 2020 the COPS event report noted:

Based on initial interaction with the POI on the phone, interactions with the POI on during the initial SSI as well as the interactions with police on 4 October 2020 police are concerned that the behaviour and mannerisms of the POI are odd and bring into question whether the POI is competent of holding an Firearms Licence.

Police have deemed it necessary to SUSPEND the POI's NSW Firearms Licence licence on the grounds of 'Not fit and proper' and referred the matter to the NSW Firearms Registry for consideration.

Police are of the opinion that it may be necessary for the POI to have a psychiatric assessment to determine whether he is fit to be a licensed firearms holder.

Sixth incident: Incident on 6 May 2022 between NSWPF and the Applicant (the 2022 bicycle incident)

62. On 6 May 2022 the Applicant had another interaction with police, which was recorded on police BWC footage and on the Applicant’s “GoPro” camera. The following is said to have occurred, based on that footage and police COPS records of the event:

The Applicant was riding his bicycle topless on Flora Street in Sutherland. The bicycle was fitted with flashing red and blue lights which were turned on. As a result of the lights, the bicycle appeared to look like a police bicycle.

Leading Senior Constable (LSC) Timothy Audus attempted to get the Applicant’s attention to discuss the lights on the bicycle by calling out “hey” and “oi” multiple times.

The Applicant was in ear shot of LSC Audus, however did not respond to LSC Audus.

LSC Audus then got out of his vehicle, approached the Applicant, and told him he could not have the flashing red and blue lights on his bicycle. The Applicant disputed this and repeatedly yelled “go away” and “get off” with increasing volume and anger. He became agitated and aggressive towards LSC Audus. The Applicant refused to remove the lights or turn them off.

LSC Audus calmly went to restrain the Applicant’s bicycle and then, in turn, the Applicant. LSC Audus explained to the Applicant that he needed to speak to him about the bicycle. As he did this, the Applicant actively attempted to evade LSC Audus by aggressively pedalling backwards and forwards. The Applicant became increasingly distressed and resisted the attempt to restrain him. He repeatedly yelled at LSC Audus “Get off me”, “You are breaking the law” and “Someone call the Police”. Throughout this process, the Applicant refused to respond to LSC Audus’ attempts to have a calm conversation with him about the bicycle.

LSC Audus radioed for assistance. LSC Audus then arrested the Applicant with the assistance of two bystanders. Throughout this process, the Applicant continued to yell and scream at LSC Audus “Get off me” and “You’re illegally detaining me”. The Applicant continued to try to break free of LSC Audus and the bystanders, however once detained on the bicycle he stated that he would remain at the intersection to talk about the matter.

LSC Audus and other officers asked the Applicant to get off the bicycle, however he refused to do so. As they attempted to remove him from the bicycle, he repeatedly yelled “Fuck off” and “Don’t ever touch me” and “Let go”.

The Applicant was detained by police and seated on the side of the road. While he was detained, the Applicant said to police, “you’re absolutely disgusting”, “you should be ashamed of yourself”, and “you hate cyclists”. The Applicant refused to provide his identification until police advised that he was committing an offence in failing to do so. The Applicant then said to police:

“And how dare you lot try to turn off my GoPro recording. You’re disgusting. You lot are absolutely disgusting … it [goes to show] how much you hate people who don’t have a blue shirt on … you guys are all in it together.”

63. The Applicant was charged with five offences, including ‘Resist or hinder police officer in the execution of duty’ under (the now repealed) s 546C of the Crimes Act 1900; ‘Ride bicycle furiously’ under r 245–1 of the Road Rules 2014; ‘Use/allow use of light on/in vehicle likely/to dazzle’ under r 219 of the Road Rules 2014; ‘Ride bicycle without working warning device’ under r 258(b) of the Road Rules 2014; and ‘Not obey direction of police/authorised person’ under r 304(1) of the Road Rules 2014.

64. These charges were ultimately withdrawn and the Applicant was compensated for his legal fees.

65. NOT FOR PUBLICATION

66. NOT FOR PUBLICATION

67. NOT FOR PUBLICATION

The Applicant’s evidence

68. The Applicant’s statement provided his responses to the COPS reports relied on by the Respondent:

7. 2/9/2014 -SUTHERLAND LOCAL COURT 1. DESTROY OR DAMAGE PROPERTY. I had arranged by phone with the employee at the business for them to stay open for when I arrive to the business. They did not stay open as arranged and because I did not have paper on me, I wrote a message on the panel that was on the wall. This was wrong of me, and I offered to pay compensation to clean the panel. It was the wrong thing for me to do at the time and I regret writing the words I did on the panel. The Court dismissed the charge against me.

8. 20/8/2014 - SUTHERLAND LOCAL COURT 1. CONTRAVENE PROHIBITION/RESTRICTION IN AVO (DOMESTIC). My ex-girlfriend claimed that I visited her at her business contravening an Apprehended Violence Order. I pleaded not guilty to this as this never occurred and the Court dismissed the charge against me.

9. E 331093992 – 5/6/2014 - My ex-girlfriend and I arranged to meet that evening, and she became very upset and agitated and began yelling and slammed the door hard in my face and damaged the door and the woodwork on the outside of the door frame. The Magistrate agreed with my version and could see the damage in the photos that was shown in court. This case was dismissed.

…

E 69276930 - 2010112019 - ASSAULT COMMON. I was jogging my usual route along North West Road from Grays Point towards Gymea minding my own business, when along opposite the tennis courts an individual in his utility vehicle performed an illegal U-turn across double yellow lines from heading north and stopped in front of me. He was yelling, incoherently, and very aggressively. As I was running north, he proceeded to assault me. I was in the process of defending myself, and he walked back to his vehicle, yelling that he's going to get his knife and stab me. I took photos of himself and his vehicle. I reported this to the Miranda police station during my running. On the way home, I received a call from Miranda police and who told me that that individual had also made a complaint. The police officer told me that there was nothing that he could do. This was very concerning to me as the individual has a serious mental problem, and he has caused me physical damage as shown to the police officer. This individual has a serious mental issue and his stories should not be believed by the police to make problems for me in this situation. I never did anything to this individual for him to react towards me. All I was doing was going for my usual run.

12.E74271568 – 23/12/2019 - I never approached my ex-girlfriend at her house after the AVO. I never followed this person around Aldi. My ex-girlfriend is very paranoid and jealous. I have no intention to visit or talk to my ex-girlfriend. I am very uncomfortable around the Miranda shopping area because my ex-girlfriend will now say that I am following her or something.

13. E75561506 - SAFE STORAGE INSPECTION – 2/10/2020. I was informed the storage requirements were not suitable and I remedied the situation.

14. E76903174 – 4/10/2020 - MOVE ALONG DIRECTION. Upon running along Farnell Avenue, it was heavy traffic build up, stopped to the entrance to the national park. The two officers in their van were stopped in heavy traffic. They were tired of waiting in traffic and performed an illegal U-turn across the double yellow lines. This was in heavy traffic with no emergency lights and very carelessly without thought for other road users. They performed an illegal three point turn across double yellow lines. They almost caused a collision with a white utility vehicle and other vehicles. I continued my run north towards Sutherland and eventually after approximately 2 km I saw the vehicle stopped at the traffic lights at the corner of Princes Highway. I was across the traffic lane away from the vehicle, and I questioned them why they would make an illegal U-turn and then I proceeded to keep jogging towards Sutherland, and the officer ordered me back. He ordered me to cross the two lines of the road to come to his vehicle. I told him that he is not allowed to make a U-turn back there and I told him that they did not even have emergency lights on and that they were driving into the oncoming traffic. They told me that they are allowed to do that, and I told them they are not. He told me I could go and so I proceeded to keep jogging towards Sutherland. By the time I saw them at the traffic lights when I was stopped there was no traffic on Farnell Avenue. The driver later in the statement claimed that she had her warning lights on which is incorrect. As a result of me making a GIPA application it was shown that this vehicle had not received any call outs to emergency jobs during this shift and in particular at the time I saw the vehicle make the illegal turn in the traffic.

15.E77402344 – 6/1/2021- COVID-19 DIRECTION. I was stopped coming out of the ticket barrier at the train station with no mask as I had just taken it off because I was on the train. The police told me that I should have the mask on. I told them I'm not on the train and they told me that I must where it on City Rail property. I told them I had it on on the train, but I did not realise you have to have it on at the barrier. He said that I could walk away now. As I was walking away I asked them why it is not advertised that masks must be worn on City Rail property. That's when he called me back and asked for my identification and gave me a warning.

16. On 6 May 2022, I was charged by Sutherland Police with resisting a police officer in the execution of their duty, not obeying a direction, riding a bicycle furiously and using lights in a bike to dazzle. I pleaded not guilty to all of these offences and the matter was listed far hearing at the Sutherland Local Court on 30 March 2023. On that date, the Police withdrew all the charges. I made an application for my legal costs to be paid by the Police and on 12 May 2023 the court awarded costs against the Police in the amount of $11,984.25.

17. I have been an active member of the Army Reserve for a period of 21 years as an Armourer and Infantryman and as a junior Non-Commissioned Officer. I have attached and marked with the letter "A" a copy of my service record which is also contained in the section 58 bundle and was attached to my Internal Review submissions. During my Army service I had unfettered access to firearms, other military weapons and ammunition of various calibres.

18. My genuine reason for wanting a firearms licence is for recreational hunting.

69. Under cross examination the Applicant’s evidence was consistent with his statement. When questioned why he refused to answer police questions, he responded “I don’t need to give answers. I had no answers to give because I did nothing wrong”, “I don’t need to answer unless I did something wrong” and “It’s my legal right I don’t have to answer questions”. When questioned about the 2019 public punching incident, and specifically why he didn’t run away if he was being attacked as alleged, the Applicant responded defensively, stating “he was hitting me and I was defending myself” and “I defended myself with my fists. So be it”, and “He hit me more”. When asked “did you see the kids in the car” he said “Not my business. I wasn’t looking”. When questioned about the 2020 confrontation with police incident, the Applicant again responded defensively, denying that he was angry or yelled at the officers or showed any verbal aggression. In relation to the 2020 safe storage inspection the Applicant similarly denied any verbal aggression and claimed he did not recall Police informing him that they would have to cease a telephone call with him if he continued to behave inappropriately.

70. The Applicant denied his interactions with police were aggressive, stating “I’m not aggressive. If someone takes exception to me stating facts, it doesn’t mean I am aggressive”. The Applicant further stated:

I could have said something that I’ve read documents to the contrary of the legislation.

I educated him that there is a right to bear arms.

He said – he was complaining about other people saying there is a right to bear arms… maybe you should research it. I was giving him some education.

I have seen this in documents. It was a general polite conversation. I recall reading a NSW bill of rights.

… I was just letting him know what I’ve seen in writing in the NSW Bill of Rights.

71. The Applicant continued to justify his interactions with Police by reference to his belief that on each occasion, they were misinterpreting or contravening the law themselves. The Applicant denied arguing with Police about safe storage requirements, stating:

In the previous legislation it required 3 locking points. If he is upset about the previous legislation, I can’t help that.

72. When questioned about his interactions with police during the 2020 confrontation with police incident, the Applicant repeated his views that the police had made an illegal u-turn / 3 point turn and denied any aggression towards them or disobeying any directions. Similarly, when questioned about the 2022 bicycle incident, the Applicant stated:

He was acting illegally and unlawfully. He was acting illegally and unlawfully. He had no right to stop me. He asked and I told him. If he didn’t like the answer, that’s his issue. I can’t help that.

73. The Applicant refused to accept the proposition that if he had gotten off the bike and spoken to police in a calm manner, the issue regarding his bike’s flashing lights would have been resolved. He stated:

If he knew what the law was. He was pushing me, assaulting me in heavy traffic… I don’t believe speaking calmly – if he knew what the law was – speaking calmly would have...

He was assaulting me so I raised my voice. Trying to prevent my injury or death…

I’m letting him know that I know what the law is and he should go study it. Never would have happened if he knew what the law is.

74. The Applicant provided the Tribunal with a report from Bradley Jones, psychologist, dated 5 July 2021, who assessed the Applicant for the purpose of providing the mental health evidence requested by the Respondent in 2021. The Tribunal notes that this report predates the Applicant’s most recent interactions with Police and largely repeats the Applicant’s self-reported history. Contrary to the evidence before the Tribunal of the Applicant’s various interactions with police, the report states:

With respect to anger management, Mr McCulla describes himself as a very meek and unassertive person who has difficulty standing up for himself, even when assertiveness is warranted. Thus, he may have some problems with the appropriate expression of anger.

75. Mr Jones opined that the Applicant was not suffering from any psychological or psychiatric disorders. Mr Jones completed a risk assessment questionnaire based on his assessment of the Applicant on 11 May 2021 and his review of a patient health summary obtained from the Applicant’s GP’s practice, answering “No” or “N/A” to each of the following questions:

1. Is there a risk that the customer's condition or impairment may impact on their ability to exercise continuous or responsible control over firearms.

2. Is there any history that the condition or impairment has affected their ability to exercise the desired control and responsibility over firearms in the past?

3. Does the customer’s condition or impairment have the current potential to put public safety at risk, if they were to have possession and use of a firearm.

4. Has the customer previously posed such a safety risk.

76. In the transcript of proceedings before the Local Court, in which costs were awarded to the Applicant, the Magistrate found that the Road Rules offence with which the Applicant was charged in relation to the 2022 bicycle incident did not, in fact, apply to bicycles and that the arrest was therefore illegal, and the offences of resist/hinder police officer could not succeed. The Magistrate said:

It was open to the OIC to clarify his legal position before laying charges. It was open to the OIC to further investigate the legal position pertaining to lights on bicycles before laying charges on the applicant.

77. The Magistrate found that the proceedings were therefore commenced without reasonable cause, which provided the basis for an award of costs.

Consideration

78. In relation to both incidents it appears to this Tribunal that the Applicant was justifying his argumentative conduct and obstructive conduct, and verbal aggression, which was clearly apparent from the video footage of the incident taken from the BWC recording, by deflecting to his self-righteous perspective that they had engaged in illegal conduct. On the evidence before me it appears that if the Applicant believes he is in the right – especially where law authority is concerned – he will act aggressively and escalate the situation with police. In his mind, his actions are justified by these views.

79. The Respondent submitted that the Tribunal should find that:

1. The Applicant is not a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace, pursuant to s 11(3)(a) of the Act;

2. It would be contrary to the public interest for the Applicant to be issued a licence, pursuant to s 11(7) of the Act; and

3. There is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his intemperate habits or being of unsound mind, pursuant to s 11(4)(c) of the Act.

80. If the Tribunal is satisfied that the Applicant is not a fit and proper person, or that there was reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms because of ‘intemperate habits or being of unsound mind’, the Tribunal must affirm the Respondent’s decision. Otherwise, whether or not it would be contrary to the public interest for the Applicant to have a firearms licence is a matter for the Tribunal’s discretion.

Fit and proper person

81. The Respondent submitted that the Applicant’s history of engaging in aggressive and erratic behaviour, both unprovoked and when frustrated or faced with conflict, his unwillingness to comply with and his resistance to police directions, and his criminal activities, are relevant factors which demonstrate that the Applicant lacks fitness and propriety to hold a firearms licence. Specifically:

80   The 2020 Safe Storage Inspection involved the Applicant rebuking and arguing with police about him obtaining a new firearms safe and re-locating his power tools. He asserted and referred to a fundamental right to hold firearms.

81   The 2020 confrontation with police incident and the 2022 bicycle incident both involve the Applicant failing to comply with police directions aimed at ensuring public safety and behaving in a confrontational and aggressive manner towards police officers. In the first, he refused to comply with an oral move on direction. In the second, he refused to speak to police, refused to comply with instructions when directed and physically resisted police requests and directions.

82   The Applicant’s behaviour in these incidents is indicative of the fact that the Applicant has a disregard for directions given by police which are directly aimed at ensuring public safety. They also suggest that the Applicant has an unwavering view of what his rights are and what is within the scope of the law and responds aggressively and with hostility when attempts are made by police to discuss the law and his rights or when they take steps to enforce the law.

82. The Applicant characterised his conduct towards Police as “calling them out”, “expressing his views”, “if he disagrees, he will want to discuss it with them”, ”just because a police officer says something, doesn’t make it right”. He emphasised that he ultimately complied with police directions after expressing his views in relation to the safe storage requirements, and when given the official ‘move-on’ direction. Whilst that is true, the Applicant’s compliance came only after arguing with police on each occasion, including raising his voice, talking over the police officers, and refusing to answer questions initially. The Applicant is entitled to his opinion, but the manner in which he has expressed it towards police has escalated any ‘discussion’, to him receiving warnings and arrests. In relation to the 2022 bicycle incident, for example, I agree with the Respondent’s submission that the issue would most likely have been resolved without escalation, arrest, charges, court proceedings and costs, if the Applicant had just gotten off his bike and spoken with the police officer in a non-aggressive manner.

83. The Applicant expressed strongly held views that if he “wasn’t doing anything wrong”, he did not need to answer police questions or comply with their directions. The role of NSW Police in investigating, charging and prosecuting criminal activity – ie, when people “do something wrong” – is only part of their function. Police officers issue requests and directions to members of the public in other circumstances, particularly when exercising their public safety function. The Applicant’s responses and attitude towards Police when they attempt to ask him questions or issue with him directions demonstrate a disregard for the role NSW Police play in managing and ensuring public safety.

84. The Respondent submitted:

The 2020 Safe Storage Inspection involved the Applicant rebuking and arguing with police about him obtaining a new firearms safe and re-locating his power tools, where he erroneously asserted and referred to a fundamental right to hold firearms. The 2020 confrontation with police incident and the 2022 bicycle incident both involved the Applicant failing to comply with police directions aimed at ensuring public safety, and behaving in a confrontational and aggressive manner towards police officers. In the first, he refused to comply with an oral move on direction. In the second, he refused to speak to police, refused to comply with instructions when directed and physically resisted police requests and directions.

The Applicant’s behaviour in these incidents is indicative of the fact that the Applicant has a disregard for directions given by police which are directly aimed at ensuring public safety. They also suggest that the Applicant has an unwavering view of what his rights are and what is within the scope of the law and responds aggressively and with hostility when attempts are made by police to discuss the law and his rights or when they take steps to enforce the law.

85. I agree with the Respondent’s submissions, based on my review of the evidence and the Applicant’s responses to cross examination at the hearing. The Applicant seems unwilling to accept, without argument, that he should comply with a request or direction by the police. This is concerning where those directions or requests are being issued for the purposes of public safety.

86. Determining an individual’s fitness and propriety to hold a firearms licence requires the Tribunal to consider both circumstances against and in favour of the Applicant’s knowledge, honesty and ability in the context of firearms possession and use. The Applicant has held various firearms licences for decades. He was an Army reservist for 21 years, working in the armoury, and was therefore familiar with various types of firearms and ammunition. In his words, he had unfettered access to firearms, military weapons and ammunition. Until 2014 he had not been charged with any firearms or violence-related offences, and the domestic violence related charge and ADVO in 2014 were dismissed. I give each of those considerations reasonable weight. The Applicant ultimately complied with police requests and directions in relation to the safe storage inspection and the 2020 confrontation with police incident. I give that some limited weight as well.

87. On the other hand, his knowledge of firearms legislation was clearly lacking, considering his arguments with police about a NSW bill of rights supporting a fundamental right to bear arms, and his initial failure of the safe storage inspection. Whilst since rectified, it does indicate that the Applicant held firearms licences for a significant period of time with a lack of understanding (or ignorance) of fundamental knowledge about his obligations under the Act and firearms regulations. This diminishes any positive consideration of the Applicant’s fitness and propriety in relation to firearms possession and use.

88. The Applicant denies all conduct attributed to him by police in relation to his ex partner, including the 2014 charge and ADVO, and going to her house again in 2019. He blames his ex-partner for being “paranoid and jealous”, and refused to cooperate with Police who were investigating the complaint made by her. Subject to a 28 day suspension / cooling off period in relation to his firearms as a result, he then got into a physical fight on 20 January 2020 with another individual. Although no charges were laid in relation to that incident, and he denies being aggressive towards his ex-partner, the evidence for each of the incidents relied upon by the Respondent supports the Tribunal finding that the Applicant does, in fact, display aggressive behaviour towards people if he believes he has been slighted in some way. This manifests as physical aggression on occasion, in addition to verbal aggression.

89. [NOT FOR PUBLICATION]

90. I note that the Applicant’s psychologist has provided a risk assessment which assessed the Applicant as having no psychiatric or psychological conditions and denied the Applicant posing a risk to public safety if he were to have possession and use of a firearm – see [74] and [75] above. I give the psychologist’s report no weight, on the basis that a) the psychologist was not made available to the Respondent for cross examination, despite their request, and b) more significantly, the report is limited to the psychologist’s assessment of the Applicant on one occasion, prior to the 2022 bicycle incidence, and the personal history which is relied on by the psychologist to describe the applicant’s character is entirely contrary to the Tribunal’s assessment of the Applicant on the basis of the evidence before it, including the Applicant’s cross examination.

91. In the context of firearms licensing, pursuant to s 11(3)(a) of the Act, the Tribunal is required to form a positive state of satisfaction that an 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: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]. The material before the Tribunal does not positively satisfy me that this is the case. In those circumstances, the Respondent’s decision to refuse the Applicant’s firearms licence is the correct and preferable decision.

Continuous and responsible control

92. The respondent submitted that the Tribunal could not be satisfied that the Applicant would personally exercise continuous and responsible control over his firearms because of his intemperate habits or being of unsound mind. In determining whether the Commissioner has established that the Applicant may not personally exercise continuous and responsible control over firearms, the Tribunal must objectively have "reasonable cause" to come to that conclusion based on established facts: see Meggit at [27].

93. In Rodgers v Commissioner of Police, New South Wales Police Service [2001] NSWADT 167 the ADT considered s11(4)(c) of the Act and identified that two elements needed to be satisfied, at [20]:

First, it must be established that the applicant be of intemperate habits (or unsound mind) and second, the Commissioner, (or the Tribunal in the case of a review decision), must have reasonable cause to believe that because of the applicant’s intemperate habits (or unsound mind) she/he may not personally exercise continuous and responsible control over firearms.

94. The ADT found that “intemperate habits” referred to the consumption of alcohol:

It is clear that to fall within s.11(4)(c) it must be demonstrated that there is a disposition or tendency to consume immoderate amounts of alcohol. A single incident of drunkenness does not of itself establish disposition or tendency towards intemperate habits. This provision is clearly concerned within patterns of conduct, not isolated incidents.

95. Historically, “intemperate habits” referred to drunkenness or the impact of alcoholism on an individual’s ability to control themselves. The Cambridge Dictionary defines intemperate as “showing anger or violence that is too extreme and not well controlled”, which is perhaps what the Respondent was relying on with respect to the Applicant’s conduct and “history of aggressive and erratic behaviour”, although this was not expressly stated. In my view, the Applicant’s aggression and conduct does not amount to a “habit”, even if it were “intemperate”.

96. There is no evidence before the Tribunal of any loss or potential loss of control over firearms by the Applicant. Even if the Applicant’s conduct was classified as “intemperate habits” (which I do not agree with), I am not satisfied that the Respondent has objectively demonstrated a reasonable cause to come to the conclusion that the Applicant may not exercise continuous and responsible control over firearms, because of such “intemperate habits”.

97. There is also no evidence before the Tribunal of the Applicant having an “unsound mind”, and I am similarly not satisfied that the Respondent has objectively demonstrated a reasonable cause to come to the conclusion that the Applicant may not exercise continuous and responsible control over firearms, because of an “unsound mind”.

98. Accordingly, I do not agree that s 11(4)(c) is relevant to the Applicant and is a basis for refusing his firearms licence application.

Public interest

99. Even if the Applicant was found to be a fit and proper person within the meaning of the Act, his conduct and history brings into question whether it is in the public interest to allow his application for a firearms licence, in circumstances where he has come into conflict with police over issues of public safety.

100. As submitted by the Respondent, there is a degree of overlap between the considerations relevant to an assessment of the public interest and those relevant to an assessment of an applicant’s fitness and propriety to hold a firearms licence, both of which are to be assessed in the heavily precautionary context of the Act, bearing in mind the overwhelming concern of the Act is to protect public safety. My findings in relation to the issue of the Applicant’s fitness and propriety are relevant also to the issue of whether it would be in the public interest for him to hold a firearms licence.

101. The firearms licensing scheme is strictly regulated to ensure public safety in relation to firearms possession, usage and storage. I agree with the Respondent that I can have no confidence that the Applicant would show any deference to the firearms licensing scheme or efforts made by police to ensure his compliance with that scheme, especially where the Applicant has a preconceived “researched” view about a legal right he may have in relation to firearms. Even putting aside his criminal history, his conduct towards police and aggressive behaviour towards members of the public demonstrate that not only is he not a fit and proper person to hold a firearms licence, but it is not in the public interest for him to do so. In addition to placing public safety at risk, his possession and access to firearms would also diminish public confidence in the licensing system, given his history, aggressive character, and disregard for public safety.

102. Pursuant to s 11(7) of the Act, I therefore find that it would not be in the public interest for the Applicant to be issued a firearms licence.

Conclusion

103. Having concluded that the Applicant is not a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act, and that it is not in the public interest for him to do so within the meaning of s 11(7) of the Act, the correct and preferable decision is for the Tribunal to affirm the Respondent’s decision to refuse the Applicant’s firearms licence application, in accordance with these reasons for decision.

Orders

1. The Respondent’s decision to refuse the Applicant’s firearms licence is affirmed.

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

Registrar

Decision last updated: 16 February 2024