McKee v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 103

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McKee v Commissioner of Police, NSW Police Force [2023] NSWCATAD 103

Hearing dates:

16 June 2022

Date of orders:

3 May 2023

Decision date:

03 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

1. The time for the Respondent to make an application under subsection 59(1) of the Administrative Decisions Review Act 1997 is extended to 3 June 2022.

2. The documents filed by the Respondent in the Tribunal Registry on 10 June 2022 and marked Exhibit ‘Confidential R1’ are not required to be lodged by the Respondent under section 58 of the Administrative Decisions Review Act.

3.   The hearing of the application in the substantive proceedings is to be conducted in the absence of the Applicant, the Applicant’s legal representatives and the public, in so far as it relates to the Confidential R1.

4.   Publication and/or disclosure of the following is prohibited:

(1)   Evidence given and submissions made before the Tribunal about the contents of Confidential R1, including any recordings made of the confidential hearing on 16 June 2022.

(2)      The contents or matters contained in Confidential R1, other than by the Respondent.

(3)      The material in those paragraphs marked ‘[NOT FOR PUBLICATION]’.

5.   The decision to refuse to grant Mr McKee a Category AB firearm licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – Application for category AB firearms licence – continuous and responsible control – way of living or domestic circumstances – public interest and public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

Bettington v Commissioner of Police [2021] NSWCATAP 110

Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16

Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208

Joseph v NSW Commissioner of Police [2017] NSWCA 31

Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241

Lee v Commissioner of Police [2021] NSWCATAD 169

Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24

Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326

Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27

Prevetera v Commissioner of Police [2021] NSWCATAD 133

Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272

Sawires v Commissioner of Police [2010] NSWADT 4

State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69

Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Scott McKee (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann and Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00045838

Publication restriction:

Publication and/or disclosure of the following is prohibited:
(1) Evidence given and submissions made before the Tribunal about the contents of Confidential R1, including any recordings made of the confidential hearing on 16 June 2022.
(2) The contents or matters contained in Confidential R1, other than by the Respondent.
(3) The material in those paragraphs marked ‘[NOT FOR PUBLICATION]’.

REASONS FOR DECISION

1. This case is about a decision by the Commissioner of Police to refuse Mr McKee a firearms licence.

2. The Commissioner of Police (‘Commissioner’) decided to refuse the licence because the Commissioner was of the opinion that there was a risk to public safety if Mr McKee was to be issued with the licence. The Commissioner formed that opinion on the basis of the domestic circumstances and personal associations of Mr McKee and took into account Police records of a number of incidents to which Police were called.

Background

3. Mr McKee applied for a category AB firearms licence on 6 January 2021. On 9 December 2021 the Commissioner refused that application.

4. Mr McKee requested an internal review of the decision to refuse the licence application on 17 January 2022. He filed an application for administrative review with this Tribunal on 16 February 2022.

5. The internal review had not been completed as at the date of the Tribunal’s hearing on 16 June 2022

Relevant legislation

6. The relevant legislation governing the issuing of firearms licences is the Firearms Act 1996. The underlying principles are stated in section 3(1) to include:

“(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

(c) to facilitate a national approach to the control of firearms.”

7. Subsection 11(3)(a) of the Firearms Act 1996 states that a licence must not be issued unless the Commissioner is satisfied that the applicant is “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.”

8. Subsection 11(4) also specifies that a licence must not be issued if:

“…the Commissioner has reasonable cause to believe that the applicant “may not personally exercise continuous and responsible control over firearms because of –

(a) the applicant’s way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause self-inflicted injury, or

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

9. A licence must also not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is “a risk to public safety” and issuing a firearms license would be “contrary to the public interest”: subsection 11(5A) of the Firearms Act 1996.

10. The Commissioner may also refuse to issue a licence if the Commissioner considers that to do so would be “contrary to the public interest”: subsection 11(7) of the Firearms Act 1996.

Administrative review jurisdiction

11. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms license is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

12. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

13. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The hearing

Procedural orders made

14. The Respondent filed certain documents with the Tribunal on 10 June 2022 and made a series of applications for procedural orders about these documents. These documents are referred in this decision as the ‘Confidential Material’ or ‘Confidential R1’.

Commissioner’s application for an extension of time to make a section 59 application

15. Subsection 58(1)(b) of the Administrative Decisions Review Act 1997 requires the Commissioner to lodge with the Tribunal a copy of every document that the administrator considers relevant to the determination of the administrative review application by the Tribunal. The purpose of this provision to require production of documents from an administrative decision-maker to assist the Tribunal in conducting an administrative review (refer to Edwards vCommissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [13]).

16. Mr Zoppo, appearing for the Commissioner, sought an extension of time to make an application under section 59 of the Administrative Decisions Review Act 1997, which is an application seeking an order that the Commissioner not be required to lodge a copy of certain documents under section 58. What flows from lodging the documents under section 58 is that the Tribunal’s principal registrar must provide the Applicant with reasonable access to the documents.

17. A section 59 application is ordinarily required to be made before the expiry of 28 days after receiving notice of the application for administrative review: sections 58(1) and 59(1) of the Administrative Decisions Review Act 1997. The Respondent’s application is clearly out of time as the Commissioner received notice of the application for administrative review on or about 28 February 2022 and made the section 59 application on 3 June 2022.

18. In making the request to extend the time, Mr Zoppo told the Tribunal that the need for the application was identified after the section 58 documents had been lodged with the Tribunal. A representative for the Respondent sent an email to the Tribunal Registry on 31 May 2022, which stated that “due to further information recently coming to the attention of the Respondent” the parties requested that the Respondent’s section 59 application be heard at the same time as the substantive hearing, that is on 16 June 2022. This email was copied to the legal representative for Mr McKee.

19. Mr Zoppo argued that the Applicant would have the same ability to address the section 59 application at the hearing as he would have if the application had been filed within time. Mr Zoppo said that the Applicant can still address the open material filed by the Respondent in relation to the application.

20. Mr Kable, for the Applicant, said that the Respondent had plenty of time to make the application and there was a procedural timetable in place that was not that difficult to comply with. He acknowledged that there was some difficulty in making any further argument, given his client did not know the contents of the material over which the Respondent sought the section 59 order.

21. In view of those submissions, particularly the submission that there would be no prejudice to the Applicant if an extension of time was given to the Respondent to make the section 59 application, I decided to grant that extension, using the power that the Tribunal has to extend time in section 41 of the Civil and Administrative Tribunal Act 2013.

Order made for part of the hearing to be a confidential hearing

22. The Respondent requested that part of the hearing be conducted as a confidential hearing. He relied on an open statement by Inspector James, dated 3 June 2022, in which Inspector James stated that “based on [his] experience as a police officer and [his] awareness of the Applicant and his associations” and disclosure of any of the Confidential Material would or could:

1. prejudice future police investigations into criminal activity;

2. identify confidential sources of information to law enforcement; and/or

3. place identified persons at risk of harm.

23. Inspector James described the material as “confidential and sensitive and only accessible by law enforcement personnel”. He described the material as “intelligence holdings” and that its purpose is to “assist in the monitoring and investigation of criminal activity and those persons who participate in unlawful conduct”. He said that if such information is disclosed it can show the Applicant or others what the Police know or do not know about persons of interest to the Police. He said that if any individual is identified as someone who has provided confidential assistance to Police or suspected of providing such assistance, they may be subjected to acts of retribution or reprisals. He said that others may also be deterred from supplying information to Police in the future.

24. Mr Kable submitted that whilst his client did not know the content of the Confidential Material, the Tribunal should be cautious in how it was treated.

25. The starting point in all matters before the Tribunal is the principle of open justice, that is that proceedings are to be conducted publicly and in open view: Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241 at [18].

26. The Tribunal can hold the whole or part of a hearing in private if the Tribunal is “satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”: section 49(2) of the Civil and Administrative Tribunal Act 2013 Whilst this is a broad discretion, it is not exercised lightly, as the “fundamental principles of open justice and procedural fairness should not be readily displaced”: Bettington vCommissioner of Police [2021] NSWCATAP 110 at [41]. Rather, there needs to be good reasons advanced for restricting access to a hearing or full reporting of Tribunal decisions: State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [61].

27. In the present case, I decided to hold part of the hearing in private, in the absence of the Applicant, his legal representatives and the public because I accepted the reasons proffered by Inspector James at [22] above and exercised the Tribunal’s discretion under section 49(2) of the Civil and Administrative Tribunal Act 2013 as I was satisfied that it was desirable to do so given the confidential nature of the evidence.

Confidential hearing

28. I conducted a confidential session to hear the Commissioner’s legal representative on the question of the nature of the Confidential Material and its relevance and probative value to the issues before the Tribunal on the administrative review.

29. [NOT FOR PUBLICATION]

30. [NOT FOR PUBLICATION]

31. [NOT FOR PUBLICATION]

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

34. [NOT FOR PUBLICATION]

Further procedural orders

Section 59 order made

35. On the basis of the open Statement of Inspector James and also the Confidential Material, I am satisfied that the nature of the contents of the Confidential Material is such that I should exercise the discretion under section 59(2) of the Administrative Decisions Review Act 1997 and order that a copy of those documents not be lodged with the Tribunal as part of the section 58 documents.

36. The reason for this is I am satisfied that disclosure of these documents could prejudice future Police investigations, identify confidential sources and or place identified persons at risk of harm.

Tender of the Confidential Material and non-publication and non-disclosure orders made

37. The Commissioner sought to rely on the Confidential Material by seeking to tender those documents into evidence. The Commissioner also sought orders for the non-publication and non-disclosure of the Confidential Material including to the Applicant.

38. The making of a section 59 order, that the Commissioner is not required to lodge the Confidential Material under section 58, does not automatically lead to orders being made to allow the Commissioner to tender the material into evidence and rely on it in circumstances where the Respondent also seeks that the material not be disclosed to the applicant: Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326.

39. The cases point to the reluctance with which the Tribunal should exercise powers which impinge on the ordinary entitlement of an applicant to procedural fairness. This was summarised in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 and included the following principles. Any such powers are to be used “sparingly” and the making of such orders is “a grave step, not to be taken lightly”. The power to prohibit disclosure of evidence to a party is to be exercised “for the purpose of securing to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve”. Also relevant is the underlying principle in section 3(1) of the Firearms Act 1996 that “firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety”.

40. I also note the comments of Senior Member Lucy in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 at [101]-[107]. Section 75(5) of the Firearms Act 1996, states that the Tribunal is to receive evidence and hear argument in the absence of the applicant, their legal representative and the public in order to ensure that the Tribunal does not disclose the existence or content of any criminal intelligence report or other information. In short, the Senior Member interpreted that subsection as being confined to decisions made on the basis of sections 11(5) and 29(3A) of the Firearms Act 1996. I accept that reasoning, noting that the Commissioner’s notice of the decision to refuse Mr McKee’s licence application identified different provisions as the basis of the decision, namely sections 11(4)(a) and 11(7) of the Firearms Act 1996.

41. I decided to make orders under section 64(1)(c) and (d) of Civil and Administrative Tribunal Act 2013 as I am satisfied that there were public interest reasons for the non-disclosure of the contents of the Confidential Material, which are identified at [22]. The orders made were that publication and/or disclosure of the following is prohibited:

(a) Evidence given and submissions made before the Tribunal about the contents of Confidential R1, including any recordings made of the confidential hearing on 16 June 2022.

(b) The contents or matters contained in Confidential R1, other than by the Respondent.

(c) The material in those paragraphs marked ‘[NOT FOR PUBLICATION]’.

42. I admitted the Confidential Material into evidence because I was satisfied that the material was relevant to the questions before the Tribunal, including whether the issue of a firearms licence to Mr McKee would be in the public interest and whether Mr McKee can be trusted to have possession of without danger to public safety or to the peace. I admitted the documents in order to make available as much relevant information as possible to the Tribunal as there is a public interest in doing so in order for the Tribunal to assess any risk to public safety. A further question to then be determined is what weight will be given to that evidence.

Substantive application

43. Having dealt with those preliminary procedural issues, I now turn to the substantive application, that is, Mr McKee’s application for review of the decision of the Commissioner to refuse him a firearm licence.

Dispensing with the requirement for an internal review

44. On 17 January 2022 Mr McKee lodged a request for internal review of the decision to refuse his firearms licence application. The internal review had not occurred by the time of the Tribunal’s hearing.

45. If an applicant is not notified of the outcome of an internal review within 21 days of lodging the application for review, it is deemed to be finalised: Section 53(9) of the Administrative Decisions Review Act 1997. Mr McKee was then entitled to apply to this Tribunal and he did so, lodging his application for review on 16 February 2022, within the 28 day period from the finalisation of the internal review, as required by rule 24(4)(a) of the Civil and Administrative Tribunal Rules 2014.

Evidence of Mr McKee about the COPS entries

46. Mr Zoppo cross-examined Mr McKee about a series of incidents recorded in records from the Computerised Operational Policing System (‘COPS records) and Mr McKee’s criminal history from the section 58 documents.

July 2021 concerns about stepdaughter

47. Mr McKee’s stepdaughter is recorded as attending Mr McKee’s address and taking one of her children, in what Mr McKee believed was a breach of the existing custody arrangements. Police record being told that his stepdaughter was “likely on ice” and has “mental health due to ice”. Police also note that Mr McKee ‘appeared to be intoxicated”.

July and August 2020 incidents involving stepdaughter

48. The COPS record states that in July 2020 Mr McKee’s stepdaughter attended his house and the record states his stepdaughter became verbally abusive.

49. In a second incident, in August 2020, Mr McKee’s stepdaughter was mentally unwell and attended his house. When Mr McKee opened the door to her, she is alleged to have hit him. He responded by physically restraining her until police arrived.

50. The attending police formed the view that Mr McKee’s daughter was “irratic [sic], manic and possibly psychotic”. She is recorded as telling police that she wished to kill herself and had stopped taking her medication. The police conveyed her to hospital for assessment and took out a provisional Apprehended Violence Order for the protection of Mr McKee. The order included a condition that that the stepdaughter not approach Mr McKee for at least 12 hours after drinking alcohol or taking illicit drugs.

51. When questioned in the hearing about this incident, Mr McKee told the Tribunal that his stepdaughter arrived and was banging loudly on the door. He said he basically told her to “F off” and she struck him. He said he frog-marched her out and she was holding onto the gates and assaulting him. Mr McKee said that the Apprehended Violence Order is still in force as the time of the hearing.

April 2018 incident involving stepdaughter

52. Mr Zoppo took Mr McKee to an entry in the COPS records which recorded that Police attended when he contacted them to report that his stepdaughter had kicked and broken a kitchen door.

53. Under questioning, Mr McKee stated that he believed his stepdaughter was living there at the time of that incident as he thought she had just split up with her partner and moved back with him and her mother.

54. Mr McKee said that his stepdaughter couch surfs and rarely comes to his place. He said that she had not stayed with him and her mother for about five years. He explained that his stepdaughter has mental health and drug abuse issues. When asked why his stepdaughter kicked the cupboard, Mr McKee said that it did not take much to cause her to “go off when she is affected”.

55. Mr McKee agreed that from 2018 to 2020 his stepdaughter was living in a house with a shared side fence with his place. He agreed that she would come to his house “semi-regularly”. He said his stepdaughter would take her mental health medication for a while and then would stop and then “self-medicate” and would use marijuana and ice.

December 2010 charge of common assault

56. Mr McKee was involved in an incident when his neighbour’s dogs killed his cat. He is reported in the relevant police Facts Sheet as saying to his neighbour “Where’s my fucking cat? What are your dogs out for? Come on. It’s game on”. Mr McKee is recorded to have then become agitated and slapped the neighbour to his face. The neighbour then retrieved Mr McKee’s dead cat from the bin and handed it to Mr McKee. Mr McKee was subsequently charged with common assault and he received a section 10 bond for six months.

57. Mr McKee told the Tribunal that he regretted the incident with his neighbour.

June 2010 argument with partner

58. Mr McKee is recorded as contacting Police at about 3:30am to ask them to remove his partner, Leesa, from the house. He is recorded as telling Police that Leesa is not “loyal” to him but he did not elaborate further. Mr McKee is recorded in the COPS entry as having a “well affected” level of intoxication and Leesa is recorded as being a “slightly affected”. Police record their view that “[a]lcohol has played a huge part in this incident” and that they could not detect any offence having been committed.

59. Mr McKee said he recalled this incident. He said that he had called the police on his partner and he was “sick of police being called on me all the time”. He explained he wanted to call first as in the past she had called the police. He said that he and Leesa had hardly any fights and it was just an argument that was becoming heated and he wanted it to end.

December 2009 charges of assault occasioning actual bodily harm and common assault

60. These charges followed an incident involving Mr McKee’s stepson, Billy. Mr McKee said that these charges never proceeded to court.

61. Mr Zoppo took Mr McKee through the Police Facts Sheet. Police allege that at about 10pm on 17 December 2009 Mr McKee argued with Billy’s girlfriend about the late payment of rent. Mr McKee is alleged to have called Billy’s girlfriend “Bitch” and that Mr McKee headbutted Billy to the face, causing pain to Billy’s nose. Mr McKee is alleged to have continued to head butt Billy three further times. He is alleged to have referred to Billy as “you bitch cunt” and to have administered a “barrage of punches” upon his stepson and to have said “It’s on now cunt”. Police attended the scene and after administering the caution, put to Mr McKee that he had assaulted Billy, to which he is alleged to have said “yeah”. Police observed numerous red marks, swelling and bruising to Billy’s face, chest and back. Police could smell alcohol on Mr McKee’s breath and he told Police he had been drinking since 10am that morning and could not state how many drinks he had consumed. Police recorded his level of intoxication as “moderately affected”.

62. When this account was put to Mr McKee by Mr Zoppo, Mr McKee denied that he had headbutted Billy. Rather, he said that when Billy approached him he had pushed him back. They were nose to nose but it was not a headbutt. Rather it was a pushing with the head. He said there was no significant force in the pushing with the head. Mr McKee said there were no marks or bleeding on Billy’s nose.

63. Mr McKee denied that he started punching Billy, but he agreed that he did punch Billy after Billy struck him. Mr McKee denied using the words “It’s on now, cunt”.

64. Mr McKee said that he had pushed with his head on Billy’s forehead, describing it as “a little love tap” to get Billy “out of my face”.

65. Mr McKee agreed that he had been drinking, but said it was not true that he had been drinking since 10am that morning.

2007 incident with stepson Billy

66. Police recorded that on 28 December 2007 Billy (then aged 17 years) alleged that Mr McKee had slapped him. Police noted that that there have been “no previous recorded domestics between the parties”. Both Mr McKee and his partner, Leesa, are recorded telling Police that Billy was verbally threatening Mr McKee with assault and had a cricket stump. Police observed no injuries and took no further action.

67. Some days later, on 31 December 2007 there is a further entry in the Police records which records that Mr McKee had a conversation with Billy that “escalated” and Billy began to verbally abuse Mr McKee. Mr McKee pushed Billy out of the house and shut the front door. Billy then bashed and kicked the door and damaged the wood frame of the door. Leesa owned the house and advised Police she did not wish to proceed with a complaint. Police took an apprehended violence order out against Billy for the protection of Mr McKee.

68. When this was put to Mr McKee he said he did not remember slapping Billy on 28 December 2007, saying that there were several incidents over time.

2003 argument with ex-girlfriend

69. On 15 September 2003 an ex-girlfriend of Mr McKee contacted Police to report that Mr McKee came to speak to her about money she owed him. She refused to give Mr McKee the money and he refused to leave until he received it. Mr McKee’s ex-girlfriend told Police that Mr McKee was sending “threatening sms messages” but Police note in the COPS record that this was not reported to them while they were in attendance at the scene. The record states that “[n]o threats were made and no offence was detected”. On 22 September 2003, Mr McKee’s ex-girlfriend attended the police station to apply for an apprehended violence order against Mr McKee.

70. Mr Zoppo put to McKee that he would not leave the premises. Mr McKee said that he left the premises but waited out the front. As to the alleged threatening sms messages, Mr McKee said that he probably did send her messages but that Police checked her phone and there was nothing there. When asked by Mr Zoppo whether the messages he sent were threatening or not, Mr McKee said he could not remember and did not believe he would have said anything threatening in the messages.

2001 argument with a different ex-girlfriend

71. On 22 January 2001 another ex-girlfriend of Mr McKee phoned Police and following a “heated” conversation with Mr McKee. Police attended but took no further action. The record states that there was a verbal argument but “nil offences”.

1994 charge of cultivate prohibited plant, possess prohibited drug and prohibited article

72. Mr McKee confirmed Police alleged that there were several marijuana (cannabis) plants in the backyard. He denied that the plants were his or that he was using cannabis or had cannabis or any other drug in his possession.

73. Mr McKee said that two other flatmates were charged and the charges were withdrawn. Mr McKee said that he did not make any statement to Police. Mr McKee agreed that he knew who owned the plants but did not tell Police. He said that he wasn’t going to dob in a housemate.

Further evidence of Mr McKee

74. Mr McKee agreed that Billy was a troubled youth and that the two had several arguments. He agreed that he and Billy had exchanged blows, saying that Billy struck him first and that he had struck Billy at times, but stated that those events were more than ten years ago. He gave evidence that his relationship with his stepson Billy is now a good relationship and has been for several years. Billy moved back in with Mr McKee and his mother in the last 12 months due to a break up in his relationship.

75. Mr McKee told the Tribunal that he could not guarantee that there would not be further instances of his stepdaughter coming over and causing trouble. He said he does not know if her mental health has improved or if she has stopped taking ice. However, he said his stepdaughter does not come inside his place, he does not let her in the house. Despite having his stepdaughter’s children visit regularly his stepdaughter has not attended his place for a while.

76. Mr McKee said that he had matured in the last ten to fifteen years. He denied that he had any problem with alcohol, stating that alcohol was “not an issue these days”.

Written statements of Mr McKee and Billy

77. Mr McKee relied on a one-page written statement, dated 13 May 2022. He addressed the 2001 incident involving his girlfriend. He said that she had been his girlfriend for 18 months and that the incident was “simply a break-up”. He said he was unaware that she had contacted Police.

78. Mr McKee said he went to a girlfriend’s house in 2003. He said he broke up with that girlfriend and that she owed him $1,500. She was not responding to his calls or texts. When he went over to her house, she called the Police.

79. Mr McKee said that this ex-girlfriend obtained an apprehended violence order against him. He said he did not appear in court to contest the apprehended violence order. He said he complied with the terms of the apprehended violence order and that it then lapsed.

80. Mr McKee states that when Leesa’s son, Billy, was living with him at times his efforts to discipline Billy, became “heated”. He said that Billy was “constantly in trouble with the law”. He describes his current relationship with Billy as good and that recently Billy has moved back to live with Mr McKee and Billy’s mother, Leesa.

81. Mr McKee also referred to the incident involving a neighbour. He said that the neighbour’s dog attached Mr McKee’s stepson, Nick, and their cat. He explained that the Court decided not to record a conviction against him in respect of this incident.

82. Mr McKee concludes his written statement by stating that he “regrets many instances of aggression”.
    He said that he has “matured a great deal” since and takes a different approach and this is shown in his recent dealings with his stepdaughter.

83. Mr McKee filed a statement from Billy that supports his account that Billy was in trouble with the police in his teenage years. Billy states that his relationship with Mr McKee is “a good strong relationship” and that he has moved back to live with Mr McKee.

Statutory declaration by Mr McKee

84. Mr McKee relies on a statutory declaration, dated 10 January 2022 in which he states that his stepdaughter has not lived with him for the last 5 years. He states that his stepdaughter has “mental health and substance abuse problems” and he has had to call the Police on a number of occasions, and he has an apprehended violence order against her.

Character references filed by Mr McKee

85. Mr McKee filed a statutory declaration from his partner, Leesa, in which she states that she has been in a relationship with Mr McKee for more than 20 years. She describes Mr McKee as “law abiding” and “definitely not a violent person”. Leesa states that she has no concerns about Mr McKee obtaining a firearms licence.

86. Mr McKee also filed references from neighbours who describe him as a helpful and kind neighbour and a devoted grandfather. The neighbours observe that any altercations Mr McKee has had were caused by Mr McKee’s stepdaughter.

Submissions

Applicant’s submissions

87. Mr Kable emphasised that the 2009 assault charges arising from the incident involving Billy were unsubstantiated and the charged were dismissed. He said there was no court extract or witness statements provided, only a police Fact Sheet. There are no documents to reveal how the matter was withdrawn or dismissed.

88. Mr Kable also referred to the text messages Mr McKee is alleged to have sent and said if there were any threatening text messages charges would have been laid.

89. Mr Kable relied on the decision of the Tribunal in Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272. In that case the applicant, Mr Romanos, was found to have committed an offence regarding the keeping of a firearm safely. Mr Romanos also had some convictions that were more than 18 years old, relating to possession of fireworks, the carrying of a weapon, possibly a knife, affray and also an attempted theft. Mr Kable referred to the passage in that decision at [47]:

“Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that [Mr Romanos] would present any risk to public safety or the peace if his licence were reissued.”

90. Mr Kable acknowledged that there was “some history” in relation to his client, but submitted that the point in time for the Tribunal to assess risk is the day of the hearing. He said any incidents involving an “aggressive attitude” were quite old. He said that last incident of a serious nature was twelve or thirteen years ago.

91. Mr Kable said Mr McKee’s stepdaughter no longer lives with him. She makes only “sporadic visits” to his place and has not visited for some time and she never comes inside the house. He highlighted the facts in Prevetera v Commissioner of Police [2021] NSWCATAD 133, a case decided by Senior Member Montgomery, where the decision to refuse a firearms licence was set aside and conditions imposed, including that the Applicant not store any firearms at his home. In that case the applicant was involved in conflict with his neighbours over a period of 20 years, some of which involved the applicant as the victim. Only one of the incidents involved violence towards the applicant. The Senior Member noted that there was no suggestion that the Applicant’s access to firearms influenced any of the conduct. He found that any risk to the community, if any, was at the “lowest end of the scale.”

92. Mr Kable referred the Tribunal to the letter from Mr McKee’s stepson, Billy, which stated that the two get along well now and that Billy has moved back in with Mr McKee and Leesa. He submitted that there were a number of police reports about Mr McKee’s interactions with Billy, but these occurred more than ten years ago and the charge was dismissed or withdrawn. He also pointed out that the alleged assault on the neighbour occurred a long time ago.

93. Mr Kable relied on the matters contained in the written request for internal review. That request said: “we note Mr McKee’s remorse and contrition, for a previous common assault charge.” Mr Kable relied on the case of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward, Mr Ward was convicted of assaulting his partner and yet the Tribunal set aside the decision to revoke the Applicant’s firearms licence.

94. The internal review request relies on the fact that Mr McKee has not been convicted of any offences involving violence. In that request Mr Kable said that the assault charge occurred after the neighbour’s two “Rottie crosses had killed Mr McKee’s cat, bit their son and terrorised their dogs”. He argued that the fact the court gave Mr McKee a section 10 bond “highlighted the objective seriousness of the incident”.

95. Mr Kable sought support from the cases of Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 and Lee v Commissioner of Police [2021] NSWCATAD 169, on the basis that the facts were similar to the present case. Those decisions are addressed below under ‘Consideration’.

96. Mr Kable submitted that there was little for the Tribunal to rely on to affirm the decision to refuse Mr McKee a firearms licence. He said that Mr McKee has children and he wishes to participate in shooting with his children and it would be a “bonding exercise”. He submitted that as at the date of the hearing Mr McKee can be trusted with firearms without any threat to public safety. He said his client had “matured substantially” and was using new strategies including with his stepdaughter and not taking matters into his own hands.

Respondent’s submissions

97. Mr Zoppo said that there were fourteen incidents involving Mr McKee. These incidents involved some significant disputes, some of which involved violence. Mr Zoppo referred to the charges brought in respect of the alleged assault on Billy and the fact that the charges were dismissed. Mr Zoppo described it as “laughable” that the Applicant in oral evidence described his actions as just a “love tap” with his head rather than a headbutt.

98. Mr Zoppo said that the Applicant’s evidence that he adopted a new strategy with his stepdaughter gives some degree of comfort that the risk associated with those interactions might be managed. He said that a risk remains arising from the use of ice by Mr McKee’s stepdaughter and that his stepdaughter will attend his house in order to play with her children. He referred to Mr McKee’s stepdaughter’s serious mental health issues and suggested that she loses sense and does not take a rational approach.

99. Mr Zoppo relied on the case of Joseph v NSW Commissioner of Police [2017] NSWCA 31 which at [62] cited the following from the decision of the Appeal Panel in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20]:

“It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment.”

100. Mr Zoppo submitted that the Tribunal should focus on the conduct not the fact of the conviction. He said that at times Mr McKee was not able to remember certain things and at times he was not able to provide a version of events. He submitted that in those circumstances the records held by the Commissioner should carry some weight.

101. Mr Zoppo also relied on the case of Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149. That case concerned a condition that the Commissioner had placed on Mr Tolley’s firearms licence that he was not to store firearms at his residential address because of concerns about his son, Stuart Tolley, who had been convicted and again charged with drug offences including the supply of drugs from the Applicant’s premises. At [31] of that decision the Tribunal stated that the breadth of the discretion to impose the conditions and the overriding object of public safety means that “there is no basis for differentiating between the conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.”

100. Mr Zoppo said that in the present case, Mr McKee’s domestic circumstances are such that the Tribunal cannot be satisfied there is “virtually no risk” to public safety. He said that the character references provided by Mr McKee do not indicate that they know this history and all the matters the Commissioner has taken into account. He cited the decision of the Administrative Decision Tribunal in Sawires v Commissioner of Police [2010] NSWADT 4 at [53] where the Tribunal cited the Appeal Panel of the Administrative Decisions Tribunal in Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60:

“…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.”

103. In written submissions, Mr Zoppo submitted that public safety, including the Applicant’s safety is the primary focus of the public interest issue and of the Act generally, citing Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134. He also referred to the Appeal Panel decision of Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16. In that case the Tribunal said:

“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.”

104. Mr Zoppo submitted that the living or domestic circumstances of Mr McKee create significant risks for public safety. He suggested that this risk arises from arguments that turn violent, either with Billy or his stepdaughter.

Respondent’s submissions in relation to the Confidential Evidence

105. [NOT FOR PUBLICATION]

Consideration

106. Mr McKee has been involved in a number of incidents to which the police have been called. These incidents have spanned the period 2001 to 2021, some twenty years. More recently those incidents have involved the actions of his stepdaughter and stemmed from her mental health issues and drug use.

107. Mr McKee does not have any criminal convictions. The 2010 charge of common assault, which arose from the incident involving his neighbour and the killing of Mr McKee’s cat, resulted in a section 10 bond and the court did not proceed to a conviction. Despite that, the Tribunal on an administrative review can take into account matters indicating criminal conduct, even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62]-[64].

108. I find that Mr McKee took a confrontational approach to the conflict with his neighbour. I accept that he engaged in behaviour that invited physical violence and he “become agitated and slapped the neighbour to his face”.

109. I considered Mr McKee’s history of other incidents involving conflict. I accept Mr McKee’s evidence, together with the written evidence from Billy, that the two have a good relationship now. I accept that when Billy was younger and living with Mr McKee there were a number of arguments and physical altercations, some of which involved Mr McKee as the victim.

110. However, of concern is Mr McKee’s denial that he headbutted Billy a number of times in the December 2009 incident described above. I did not accept Mr McKee’s account of the incident, finding it unconvincing, including his evidence that he used his head to push Billy on the head with no significant force and that it amounted to a “a little love tap” rather than a number of headbutts to Billy’s head. I do not accept Mr McKee’s version of events, particularly because of the injuries I find occurred to Billy as recorded in the COPS entry as numerous red marks, swelling and bruising to Billy’s face, chest and back. I do not accept Mr McKee’s evidence that Billy had no marks or bleeding on his nose. I find that Mr McKee’s evidence to the Tribunal also reduced other aspects of his conduct, such as denying that he had been drinking since 10am and denying that he used the words “It’s on now, cunt”.

111. Again, there was no criminal conviction as these charges were dismissed. There are no documents to reveal how the matter was withdrawn or dismissed, just that the charges did not proceed.

112. I recognise that approximately thirteen years that have passed since the last incident involving Mr McKee, other than the incidents involving his stepdaughter. Of concern is the propensity of Mr McKee to be confrontational in his interactions and his unwillingness to fully admit or acknowledge the gravity of his conduct, especially his conduct towards Billy in December 2009.

113. The incidents in 2001 and 2003 involving arguments with ex-girlfriends occurred twenty or more years ago. Given the passage of time, I do not consider this information of assistance in determining the question before me, that is whether the issue of a firearms licence to Mr McKee now would be contrary to the public interest. I am also not satisfied on the evidence that Mr McKee sent threatening sms messages to his ex-girlfriend in 2003.

114. I also do not think the June 2010 incident in which Mr McKee called the police after an argument with Leesa gives rise to any relevant concerns. I also do not consider the 1994 drug-related charges that were withdrawn as relevant to the question before me.

115. I accept that Mr McKee’s stepdaughter has significant mental health and drug use issues and there is a likelihood she may attend his house on future occasions, including when mentally unwell or drug-affected. I accept that she hit Mr McKee in August 2020 when she was mentally unwell and that he physically restrained her until police arrived. I note that there was an apprehended violence order in place for the protection of Mr McKee, which has since expired.

116. I accept that Mr McKee’s stepdaughter no longer lives with him and his partner and does not visit them regularly and if she does attend she is not permitted into the house. I note Mr McKee’s view that it did not take much to cause his stepdaughter to “go off when she is affected”. However, I accept Mr McKee’s evidence that his stepdaughter would not be allowed in the house if she did present herself in such a state. I do not consider that the possibility that Mr McKee’s stepdaughter would present at his house give rise to any real and appreciable risk to public safety if Mr McKee was to be issued a firearms licence or would lead me to find that he may not personally exercise continuous and responsible control over firearms (section 11(4)(a) of the Firearms Act 1996).

Consideration of the Confidential Evidence

117. [NOT FOR PUBLICATION]

118. [NOT FOR PUBLICATION]

119. [NOT FOR PUBLICATION]

120. One of the bases of the Commissioner’s decision was that it was contrary to the public interest that Mr McKee be issued with a firearms licence: refer to section 11(7) of the Firearms Act 1996. The concept of public interest is a broad one and can encompass concerns about public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 at [33].

121. Mr Zoppo referred to the need for the Tribunal to be satisfied that there is “virtually no risk” to public safety if a person was given access to a firearm. This wording was used by Deputy President Hennessy in the decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [28]. The Deputy President clarified this comment in AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [8], stating that it had been made in the context of the “fit and proper” test in the Firearms Act and that it should not be understood as a judicial gloss on that test.

122. Rather, in deciding whether there is a risk to the safety of the public if Mr McKee is granted a firearms licence it is necessary to adopt “a balanced view of risk bearing in mind all the circumstances” and only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 at [32].

123. I find that Mr McKee has been involved in heated arguments and at times taken a confrontational approach to conflict which has resulted in violence. This was what occurred when he confronted his neighbour in 2010.

124. I carefully considered the case of Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24. In that case Mr Mewburn had a history of domestic disputes with his de facto and also disputes with his neighbours (at [4]). Mr Mewburn also had in his favour a long history of responsible use of firearms (at [27]) and he had removed himself from the domestic situation with his partner and former neighbours ([30]). In that case the Tribunal considered the material gave rise to “cause for concern” that there would be a risk to public safety or the peace if Mr Mewburn were allowed to possess firearms, but ultimately concluded the risk was minimal (at [43]).

125. In Lee v Commissioner of Police [2021] NSWCATAD 169, Mr Lee was involved in an incident in a restaurant where he threw tip jar at the wall in a fit of rage. His charge was downgraded from assault occasioning actual bodily harm to an assault and no conviction was recorded. In that case the magistrate accepted Mr Lee’s actions were “truly out of character” and he was “deeply embarrassed”, conveyed his regret to the victim through a letter of apology and undertook an anger management course (at [12)]. The Tribunal referred to a series of reports to police about the conduct of Mr Lee’s daughter Kaitlyn and later his son Conor. Conor is described as an illicit drug user who had displayed aggressive behaviour including punching Mr Lee in the head. There was an AVO in place preventing Conor from being at Mr Lee’s home. The Tribunal concluded that Conor would not be accepted at his parents’ house and if he did breach the AVO there was little likelihood that Conor would gain access to firearms and this was a purely “theoretical” risk.

126. While these cases have some factual similarities, I am satisfied there is a real an appreciable risk to the safety to the public if Mr McKee was to be granted a firearms licence. I am unable to obtain any degree of comfort from the character references provided by Mr McKee, chiefly because these references do not also address the negative conduct of Mr McKee and so should be approached with caution: refer to Sawires v Commissioner of Police [2020] NSWADT 4 at [53] which cited Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60. I am concerned about Mr McKee’s reluctance to fully acknowledge his actions in headbutting Billy in 2009.

127. In both Ward and Lee the applicants admitted the conduct giving rise to the charges. Both sought to address their behaviour. Mr Ward he saw a counsellor on three occasions who proffered the view that it was unlikely that he would be violent in the future: Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [13] and [28]. Mr Lee undertook an anger management course.

128. Mr McKee told the Tribunal he regretted the instances of “aggression” and said that he has matured and takes a different approach to situations of conflict. However, given the fact that Mr McKee has in the past had a confrontational approach to conflict which led to physical altercations, his reluctance to acknowledge his conduct towards Billy in the 2009 incident and combined with the Confidential Material, I consider that there is a real and appreciable risk that if granted a firearms licence that there would be a risk to public safety. I consider that risk to be a real and appreciable risk, not merely a “[m]inimal, fanciful or theoretical risk”.

129. As stated in Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134, the firearms licensing regime is about protecting the public and about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. In the present case the overriding need is to ensure public safety (section 3(1)(a) of the Firearms Act 1996) and this prevails over the interest of Mr McKee in obtaining a firearms licence.

Orders

130. The decision made by the Commissioner on 9 December 2021 to refuse Mr McKee 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 Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 May 2023