Neorchik v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Neorchik v Commissioner of Police, NSW Police Force [2023] NSWCATAD 58

Hearing dates:

24 October 2022

Date of orders:

16 March 2023

Decision date:

16 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

In matter number 2022/99690:

(1) The decision by the Commissioner of Police, NSW Police Force to revoke the Applicant’s firearm’s licence is set aside.

In matter number 2022/192155:

(1) The decision by the Commissioner of Police, NSW Police Force to refuse the Applicant’s application for a firearm’s licence is set aside.

(2)The decision is made that the Applicant’s application for a firearm’s licence is granted.

Catchwords:

Administrative Law – Licensing – firearms – revocation of licence – refusal of licence application - fit and proper person – public interest

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

David Neorchik (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
McCullough Robertson (Respondent)

File Number(s):

2022/99690 and 2022/192155

Publication restriction:

Nil

Reasons for Decision

Introduction

1. These are applications by David Neorchik (“the Applicant”) for review of two decisions by delegates of the Commissioner of Police, NSW Police Force (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Firearms Act”). The decisions were:

1. to revoke the Applicant’s category AB firearms licence; and

2. to refuse the Applicant’s application for a firearm’s licence.

2. The two matters were heard together and evidence in one is to be regarded as evidence in the other. Nevertheless, the two matters are to be determined separately.

Background

3. The Applicant held and renewed firearms licences from 2010, for the stated reasons of sport/target shooting and recreational hunting/vermin control, until his licence was revoked in 2020.

4. The revocation followed an incident in May 2020 (“the May 2020 incident”) which involved the Applicant and his wife. It was reported that, while intoxicated, the Applicant engaged in verbally abusive conduct towards his wife. This incident was recorded in the Respondent's electronic database ("COPs").

5. The Applicant’s wife reported to police on that night that she had been subjected to an ongoing pattern of verbal and occasional physical abuse from the Applicant when he consumed alcohol. The Applicant’s wife further reported to police that on most weekends the Applicant drank heavily, and that she held fears that the Applicant, whilst under the influence of alcohol, would continue to be verbally abusive towards her and her child, and may again physically assault her.

6. A provisional apprehended violence order (“PAVO”) was subsequently sought but it was withdrawn shortly afterwards. As a result of the PAVO, the Applicant’s firearms licence was suspended on 1 June 2020.

7. In December 2020, a delegate of the Respondent determined to revoke the Applicant’s category AB firearms licence (“the Revocation Decision”). The Revocation Decision was affirmed on internal review in March 2022. The internal reviewer noted concerns for public safety and a lack of regard for the law due to the following:

1. the Applicant had failed to maintain a membership of a firearms club for a period of 2.5 years;

2. the underlying conduct that led to the PAVO being issued as reported contemporaneously by the Applicant’s wife to the police; and

3. the Applicant’s history of traffic offences and infringements indicating a disregard for a regulatory scheme ensuring public safety.

8. The Applicant’s firearms licence expired in February 2022. That is, before the internal review was finalised. The Tribunal does not have the power to reissue the expired licence. However, the Tribunal can determine whether or not the Revocation Decision is the correct and preferable decision.

9. The Applicant applied to the Tribunal for external review of the Revocation Decision in April 2022.

10. In March 2022, the Applicant applied for a category AB firearms licence. A delegate of the Respondent refused the Applicant’s application (“the Refusal Decision”). The Refusal Decision was affirmed on internal review in May 2022. The internal reviewer again referred to:

1. the Applicant’s failure to maintain membership of a firearms club and his failure to meet minimum attendance obligations;

2. the underlying conduct that led to the PAVO being issued;

3. the PAVO; and

4. the Applicant’s driving record.

11. The Applicant applied to the Tribunal for external review of the Refusal Decision in June 2022.

12. The Respondent contends that each of the decisions is the correct and preferable decision because:

1. it is not in the public interest for the Applicant to continue to hold a firearms licence: and

2. the Applicant is no longer a fit and proper person to hold a firearms licence.

The issue for determination

13. The issue in each of these cases is whether the correct and preferable decision is to affirm, vary or set aside the Respondent’s decision.

14. This requires consideration of whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to do so.

The Tribunal’s Approach

15. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 (“the ADR Act”).

16. The Tribunal makes its own decision in place of the Respondent’s, and there is no presumption that the Respondent’s decision is correct.

17. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Respondent to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

18. Under section 38(2) of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

19. The Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Firearms Act.

Applicable legislation

20. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal’s jurisdiction includes review of decisions by the Respondent to refuse an application for a firearms licence.

21. This application is made under section 75 of the Firearms Act and the ADR Act.

22. The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

23. The underlying principles of the Firearms Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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

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

24. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

25. Section 11(3)(a) of the Firearms Act prescribes that a firearms licence must not be issued unless that 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.

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

27. Section 12(1) of the Firearms Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Sport/Target Shooting" and "Recreational Hunting/Vermin Control". In support of the "Sport/Target Shooting" reason, the Applicant identified that he is a member of a shooting club, specifically, the Sporting Shooters' Association of Australia (“the SSAA”).

28. Section 24 of the Firearms Act provides:

Revocation of licence

…

(2)   A licence may be revoked—

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

…

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

29. Clause 20 of the Firearms Regulation 2017 (“the Regulations”) provides that the Commissioner ‘may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.

30. Clause 29 of the Regulations provides that:

29 Sport/target shooting

A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject)—

(a)   the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members),

(b)   the licence does not authorise the use of a firearm except at a shooting range approved under Part 8 or under the authority conferred by clause 33 (Licences and permits extend to authorise sighting in, patterning and related activities).

31. Clauses 105 and 107 in Part 10 of the Regulation provide that:

Part 10 Participation requirements for club members

105 Definitions

In this Part—

approved club for a particular category of licence means an approved shooting club (including an approved pistol club), approved hunting club or approved collectors’ society or club of which the holder of a licence of that category is required to be a member under this Part.

competitive shooting match means a shooting activity in which scores are kept and results recorded.

compliance period for an approved club means each consecutive 12-month period that starts on the day of the year that the club has determined to be the start of its compliance period for the purposes of participation by club members.

participation in a shooting activity includes, in the case of a competitive shooting match, officiating at such a match.

shooting activity of an approved club means the following—

(a)   a shooting activity that is conducted by the club at the club’s shooting range, including a competitive shooting match, shooting training and target practice at the club’s shooting range,

(b)   firearms safety training conducted by the club at the club’s shooting range,

(c)   a competitive shooting match held at a shooting range other than the club’s shooting range where the match is endorsed by the club (including such a match that is conducted outside NSW or outside Australia).

...

107 Participation requirements for sport/target shooters (other than pistol shooters)

The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.

32. Clause 111 of the Regulation concerns membership of more than one approved club. It provides:

111 Membership of more than one approved club

(1)   If the holder of a licence who is required under this Part to be a member of an approved club of a particular category is a member of more than one approved club of that category, the following provisions apply—

(a)   the licensee must nominate a principal club of that category of which the licensee is a member and with which the licensee will mainly be involved,

(b)   the licensee must notify the Commissioner of the nominated principal club in writing or in such other manner as may be approved,

(c)   if the licensee participates in any compliance activity of a club of that category that is not the licensee’s nominated principal club of that category—the licensee must notify the nominated principal club in writing of the details of any such activity within each compliance period of the nominated principal club,

(d)   compliance activity is required only during a compliance period of the nominated principal club.

(2)   In this clause, compliance activity means an activity in which a person participates for the purposes of compliance with a requirement of this Part.

33. Clause 31 of the Regulation provides that a licence that is issued for the genuine reason of recreational hunting/vermin control is subject to the condition that the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members).

34. Clause 108 of the Regulation provides:

108 Participation requirements for member of approved hunting club

(1)   The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.

(2)   This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.

(3)   In this clause—

hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.

35. The Applicant became a member of the SSAA in October 2009.

36. As noted, the Respondent contends that the Applicant is no longer a fit and proper person to hold a firearms licence.

Fit and proper person

37. The Firearms Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Firearms Act on numerous occasions.

38. The issue of the Applicant’s fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

39. In the context of the Firearms Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

40. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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.

41. They went on to say at 388:

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.

42. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

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 devolving 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.

43. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

44. As also noted, the Respondent contends that it is not in the public interest for the Applicant to continue to hold a firearms licence.

Public interest

45. Section 11(7) of the Firearms Act provides:

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.

46. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range 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."

47. The 'public interest' allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

48. “Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

49. The licensing regime is not about punishment but rather about protecting the public. It is 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.

50. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

51. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

52. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 documents)”). This material includes a number of records held in COPS. The Respondent relies on the record of a domestic related incident which records an allegation that the Applicant had been verbally and physically abusive towards his former wife and child. The Respondent also points to the Applicant’s history of traffic offences and other issues. The Respondent's solicitor, Ms McMahon also provided written submissions.

53. The Applicant relies on his own evidence and submissions. He appeared at the hearing and gave evidence. He also relies on evidence from his former wife.

The Respondent’s case

54. The Respondent contends that the Tribunal should determine, consistently with the Revocation Decision, that:

1. the Applicant is no longer a fit and proper person to hold a firearms licence; and

2. it is not in the public interest for the Applicant to continue to hold a firearms licence.

55. The Respondent also contends that the Tribunal should determine, consistently with the Refusal Decision, that:

1. the Applicant is not a fit and proper person to hold a firearms licence;

2. the Applicant cannot be trusted to have possession of firearms without danger to public safety; and

3. issuing a firearms licence to the Applicant would be contrary to the public interest.

56. Relevant to these issues, the Respondent points to the allegation of the Applicant’s history of misuse of alcohol and aggressive conduct which resulted in the PAVO. Further, the Respondent submits that the Applicant has a history of non-compliance with his legal obligations.

The PAVO

57. As noted above, the Respondent submits that the Applicant is not a fit and proper person in light of the issue of the PAVO and the underlying behaviour described in the COPS Event report of 31 May 2020.

58. The Respondent submits that the Applicant conducted himself in an offensive or aggressive manner whilst under the influence of alcohol.

59. The Applicant points to a letter from his former wife which indicates that she no longer stood by the allegations that she made to the police in regard to the May 2020 incident. The Respondent contends that the Tribunal should not accept that evidence but should prefer the contemporaneous notes made at the time of the incident as recorded in COPS.

60. A September 2022 letter from the Applicant’s former wife states “what I have expressed to the police at the time of the report may have been misconstrued and may have been overstated”. The Respondent submits that the letter does not state that the report to the police was false or inaccurate, simply that it was “overstated”. The Respondent also raised several issues in regard to the former wife’s correspondence which the Respondent contends cast doubt on whether the letters were in fact written and signed by the Applicant’s former wife or were provided by her without coercion.

61. The COPS entry shows that on the night of 31 May 2020 the Applicant’s then wife reported to police that she had been subjected to an ongoing pattern of verbal and occasional physical abuse from the Applicant when he consumed alcohol. She further reported to police that the Applicant drank heavily most weekends and that she held fears that the Applicant, whilst under the influence of alcohol, would continue to be verbally abusive towards her and her child, and may again physically assault her.

62. The Respondent submits that the May 2020 incident demonstrate that the Applicant has a tendency to conduct himself in an offensive or aggressive manner whilst under the influence of alcohol.

63. The Respondent submits that, for this reason, the Tribunal should conclude that the Applicant is not a fit and proper person to hold a firearms licence.

The Applicant’s non-compliance with his legal obligations

64. The Applicant’s firearms licenses were issued for the stated reasons of sport/target shooting and recreational hunting/vermin control. As noted above, the was required to meet participation requirement in relation to the genuine reason that he had for holding the licence. The Respondent contends that the Applicant has a history of non-compliance with those obligations.

65. The Respondent relies on information it has obtained by the SSAA which indicates that the Applicant’s membership of the SSAA expired on 31 October 2013 and was not renewed again until 9 February 2016. The Respondent also submits that records further indicate that the Applicant has not met minimum club event and activity attendance requirements since 31 March 2017.

The Applicant’s Traffic Record

66. The Respondent contends that the Applicant’s history of traffic offences and infringements indicate a disregard for a regulatory scheme ensuring public safety. The record shows that since 2003, the Applicant has been charged with several driving offences and infringements. The record shows:

• the Applicant’s driver’s licence was disqualified from 6 July 2003 for a period of 6 months because he was charged, and found guilty of, “Drive with middle range concentration of alcohol”;

• the Applicant’s driver’s licence was suspended from 25 May 2004 for a period of three months because the Applicant exceeded the speed limit by more than 15km/hr but not more than 30km/hr and failed to display his provisional licence plates;

• the Applicant’s driver’s licence was suspended from 30 July 2005 for a period of 10 months because the Applicant exceeded the speed limit by more than 45km/hr;

• the Applicant’s driver’s licence was suspended from 8 July 2007 for a period of approximately six months;

• the Applicant’s driver’s licence was suspended from 13 February 2008 for a period of three months because the Applicant exceeded the speed limit by more than 45km/hr and, separately, exceeded the speed limit by more than 15km/hr but not more than 30km/hr;

• the Applicant’s driver’s licence was suspended from 12 August 2018 for a period of 6 months; and

• The Applicant’s driver’s licence was again suspended from 20 March 2019 for a period of three months because the Applicant exceeded the speed limit by more than 45km/hr.

67. The Respondent submits that the Applicant’s driving history demonstrates a repeated disregard for complying with his legal obligations. Traffic laws are aimed at ensuring public safety, and the repeated contravention of these laws can be indicative of a person’s disregard for other regulatory schemes that are aimed at ensuring public safety, such as firearms.

68. The Respondent accepts that prior to the most recent offence the Applicant had no offences in 11 years and he has not offended since 2018. However, the Respondent submits that the Applicant’s most recent driving suspension was for exceeding the speed limit by more than 45km/hr and that the Applicant fails to acknowledge the risks associated with his behaviour.

69. The Respondent further submits that the Applicant’s pattern of driving offences and attitude towards traffic laws indicates the Applicant’s unwillingness to comply with legal obligations and suggests there is a significant possibility that the Applicant will disregard his legal obligations in the future, including relating to firearms, the legislation in respect of which is designed with the overriding need for public safety.

70. For these reasons, the Respondent submits that the Tribunal can readily form the requisite opinion that the Applicant is no longer a fit and proper person to hold a firearms licence.

71. In relation to the Refusal Decision, and pursuant to section 11(3)(a) of the Firearms Act, a licence must not be issued if the Respondent is not 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. The Respondent submits that the Tribunal cannot readily be satisfied of those matters.

72. Further, the Respondent also submits that the Tribunal ought to be satisfied that it is not in the public interest for the Applicant to continue to hold a category AB firearms licence and that issuing a licence to the Applicant would be contrary to the public interest.

73. In the circumstances, the decisions under review should be affirmed.

The Applicant’s case

74. The Applicant relies on his own evidence and that of his former wife. They both attended the hearing, gave evidence and were cross-examine.

75. The Applicant stated that he is immuno-compromised due to cancer and the treatment he is receiving. This treatment places limitations of his physical movement and also restricts his intake of alcohol. His evidence is that even outside of his treatment he does not usually drink a lot of alcohol and so it doesn’t take a lot of alcohol to affect him.

76. In relation to his consumption of alcohol the Applicant stated:

The police own statement in the DVO from the evening that 31 May 2022 does state they woke me, the applicant with no observation of alcohol induced behaviour. I did inform you of my own volition alcohol that evening had been consumed in a small amount which did affect me and my ex-wife did make a formal statement confirming she did lie about this.

The PAVO

77. The Applicant disputes the contention that he is not a fit and proper person because of the May 2020 incident.

78. He denies that he is intimidating and denies that his former wife ever feared him. He did not dispute that the two screamed at each other during the May 2020 incidence. Nevertheless, he believes that the PAVO should never have happened. He said that he has no history of alcohol abuse, and he has no history of domestic violence.

79. The Applicant and his former wife have lived separated since the night of the PAVO. No issues have arisen in that time to suggest there is any cause for concern in regard to his conduct. His evidence is that they have a working relationship, but it is no longer a romantic relationship.

80. His evidence is that the report that his former wife made to police in regard to the May 2020 incidence was not accurate. He does not dispute that he was shouting at her at the time, but he stated that his former wife was also shouting at him. He denied that he had ever physically assaulted his former wife.

81. The Applicant’s former wife attended the hearing and gave evidence which is consistent with the Applicant’s position. Her evidence is that in regard to the May 2020 incident, the report that she made to police in regard to the Applicant’s drinking and domestic violence was not true. She confirmed that she had authored several letters sent in support of the Applicant’s case. She also provided evidence to address the Respondent’s concerns that she had not been the author of those letters or that she had been coerced into sending them.

The Applicant’s Traffic record

82. The Applicant’s response to the Respondent’s assertion that his history of traffic offences and infringements indicate a disregard for a regulatory scheme ensuring public safety stated:

I did point out the few summary driving offences in my teens and early 20’s more than 20 years prior to my initial firearms license issue and background check which did discount those same offences as an issue as irrelevant sophistry due to a lack of an actual problem is correct.

83. In regard to the offences, he provided the following summary:

In 2003 I was barely 20 and a stupid kid who liked anything that blew my hair back. The only excuse I can offer is I always found a place away from other people to express that interest, and you will note the one isolated time I did this again it was again in the isolated parts of the royal national park.

In 2018 with my learner level bike, a Honda 500, not exactly a super bike, I found a flat isolated bit away from everyone else and let it rip to see what it could do while blowing away some frustrations.

There was a police initiative at the exact same time to have someone watching that flat isolated bit of road as I assume other people knew about it and I was caught in my moment of stupidity. I will not do that again as you will note I had not for more than a decade with a gold driver’s license and again have not for the 2 years since 2018. I'm not 20 anymore. I'm 40 with children.

84. In relation to the most recent incident, he added:

The offence … was in 2018 and not 2019.

The suspension did occur in 2019 as the officer who fined me at his discretion, did not put through most of the offence listed. The remaining offences were actually added via system automation at a later date. The officer did recognise that I picked a place quite far away from other people and took it into consideration when applying the required summary offence.

The automated system after some months later picked up on this and dutifully suspended my licence which you have now confused in terms of time. This was in actual fact the same 2018 offence.

I was on a motorcycle with a motorcycle licence (for only this purpose with 4 points as otherwise we only have 1 license) and therefore not being on my full gold 4-wheel vehicle licence with sufficient points. Prior to this offence, I have had no demerit points due to not having an offence in 11 years.

85. He acknowledged the offence, and his evidence is that has not repeated the behaviour since 2018.

Non-compliance with his legal obligations

86. In regard to the alleged non-compliance with the participation requirement in relation to the genuine reason that he had for holding the licence he provided the following explanation:

The SSAA have supplied my formal attendances to various ranges showing my avid enjoyment of my hobby which is also typically family time for me. …

…

I have subsequently renewed my membership with the SSAA per attached receipts in the hope I can rejoin my family events.

In regards to my membership lapsing in 2013 I can only apologize for my mistake. I was under the genuine impression my club membership never lapsed until the police suspended my license 2 years ago and I elected to save money as I was informed due to covid there were standing orders that they must suspend my firearms license and the process would then take quite a long time. I confirmed the length of process with follow up communications with the officer involved and FAR as well.

The SSAA indoor range at St Marys would usually inform me when my membership was going to lapse, usually to inform me I wouldn't get the member discounts. I had no idea at the time or I would have remedied the situation immediately, I was under the impression FAR would be knocking on my door in minutes if I had not.

As my attendances show I did not stop shooting. I actually joined the Penrith hunting club for a short time in 2013/14 which you should have some attendances for me with some very long time family friends whom I joined the club with.

In 2013 I purchased a specialized over and under 12g trap shot gun to enjoy trap shooting at the Sydney international shooting centre. The Olympic range does not require membership to shoot there. There was no discount and as a SSAA member and a hunting club member I didn't retain another membership though you should also see frequent signed attendees at that range for me though they were not digital, it was all pen and paper at the window of the office there. My parents live in St Clair and the international shooting centre was essentially 5 minutes away, it was great.

87. He also noted that in 2013 he was attending university full time, poor, studying and not doing many social activities.

88. The Applicant’s case is that he is a fit and proper person to hold a firearms licence and that it is not contrary to the public interest for him to do so.

Consideration

89. As noted, there are two different decisions under review. In regard to the revocation decision, it is apparent that the Applicant’s licence was suspended following the May 2020 incident.

90. The Respondent has alleged that the Applicant engaged in conduct that demonstrates that he is not a fit and proper person to hold a firearms licence. The Respondent is rightly concerned about the presence of firearms in situations involving domestic violence.

91. In my view, based on the circumstances that were known to the police at the time of the May 2020 incident, the correct decision was taken. However, I have been given evidence that was not known to the police at the time and that evidence is significant to the matters under review.

89. The Applicant’s former wife has made it clear that the report that she made to police in May 2020 was not accurate. On the basis of that evidence, I am not satisfied that the Applicant’s former wife had been subjected to an ongoing pattern of verbal and occasional physical abuse from the Applicant when he consumed alcohol.

90. There is no suggestion that the Applicant has engaged in any conduct of that nature since the May 2020 incident.

91. I have no basis to think that the Applicant’s former wife was coerced into giving the evidence that she gave before the Tribunal.

92. That being the case, I am not satisfied that any weight should be given to the fact that the Applicant was made subject to the ADVO.

93. A number of decisions of this Tribunal have dealt with the issue of public safety in the context of an applicant’s traffic record which demonstrates a disregard for public safety and the Applicant’s own safety, as well as a disregard for a regulatory scheme aimed at ensuring public safety.

94. It has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard comparisons have been made between a lack of compliance with traffic laws and the likelihood that an applicant might adopt a similar view towards compliance with firearm legislation.

95. In this matter, I do not share those concerns. It is apparent that the Applicant had a very poor driving record when he was in his early twenties. He then went through a long period in which his record was unblemished. That changed in 2018 when he obtained a new motorcycle and, foolishly, he decided to test its capability. I agree with the Respondent that on that occasion he showed a disregard for public safety and the Applicant’s own safety. However, since then he has regained his unblemished record. I am satisfied that it was a one-off event, and he has paid the price.

96. The Applicant’s pattern of conduct suggests a change of attitude towards compliance with the traffic laws. In my view, the earlier offences demonstrated a general disregard for a regulatory scheme aimed at ensuring public safety. If that pattern had continued, I would have formed a different view. However, the pattern was broken with the exception of the 2018 incident.

97. In my view, that record should not be regarded as demonstrating that the Applicant is not a fit and proper person to hold a firearms licence or that it is contrary to the public interest for him to do so.

98. The Respondent has also raised the issue of the Applicant’s failure to meet the participation requirements related to his genuine reasons for holding a firearms licence. The Applicant has not disputed that for a period of time his SSAA membership had lapsed. He provided a plausible explanation for the lapse and has given an assurance that the issue will not be repeated.

99. It is important that licensees meet their participation requirements because it provides an avenue whereby a licensee is able to keep abreast of legislative changes and maintain an awareness of their obligations under the Firearms Act.

100. This is not a situation where the Applicant showed contempt for the regulatory regime. On the evidence before me I am satisfied that the Applicant was generally aware of his obligations and made a genuine attempt to meet those obligations. I am satisfied that it is probable that he would comply with his obligations if he were again given the privilege of having access to firearms.

101. As I have noted above, the licensing regime is directed towards protecting the public by identifying the possible risks to the public’s safety, and then making decisions that are consistent with the need to reduce any risks to a minimum.

102. On the evidence before me, I am satisfied that there is virtually no risk to public safety if the Applicant is given the privilege of having access to firearms. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I am not satisfied that it would be contrary to the public interest for him to do so.

103. That being the case, it is my view that the correct and preferable decisions are to set aside both the revocation decision and the refusal decision. The licence application should be granted.

Orders

In matter number 2022/99690:

1. The decision by the Commissioner of Police, NSW Police Force to revoke the Applicant’s firearm’s licence is set aside.

In matter number 2022/192155:

2. The decision by the Commissioner of Police, NSW Police Force to refuse the Applicant’s application for a firearm’s licence is set aside.

3. The decision is made that the Applicant’s application for a firearm’s licence is granted.

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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 March 2023