O'Connor v Commissioner for Police, NSW Police Force

[2018] NSWCATAD 290

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	O’Connor v Commissioner for Police, NSW Police Force [2018] NSWCATAD 290
Hearing dates:	01 August 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Respondent’s decision is affirmed
Catchwords:	ADMINISTRATIVE LAW - FIREARMS – risk to public safety – previous convictions – knowledge - public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing Procedure) Act 1999 Customs (Prohibited Imports) Regulation 1956 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Firearms Regulation 2006 Weapons Prohibition Act 1998
Cases Cited:	Brosowski v Commissioner of Police [2003] NSWADT 182 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Constantin v Commission of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89 Joseph v Commissioner of Police NSW Police Force [2014] NSWCATAD 46 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 O’Donnell v Commissioner of Police [2009] NSWADT 82 Saba v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 129 Vella v Commissioner of Police [2003] NSWADT 91 Ward v Commissioner of Police [2000] NSW ADT 28
Category:	Principal judgment
Parties:	Patrick Pearse O’Connor (Applicant) Commissioner for Police, NSW Police Force (Respondent)
Representation:	In person (Applicant)   Solicitors: Maddocks (Respondent)
File Number(s):	2018/00125309
Publication restriction:	None

Reasons for decision

Background

1. Patrick Pearse O’Connor (the applicant) was first authorised to use firearms in 1989 and was issued with a Category AB firearms licence for the genuine reason of ‘recreational hunting / vermin control on 9 March 1999 pursuant to the Firearms Act 1996 (the Act).

2. On 13 July 2005 the Applicant was convicted of the following offences:

1. Cultivate prohibited plant, under s23(1)(A) of the Drug Misuse and Trafficking Act 1985;

2. Possess shortened firearm (not pistol) without authority-T2 under s62(1)(B) of the Act,

3. Possess / use a prohibited weapon without permit-T2 under s7(1) of the Weapons Prohibition Act 1998; and

4. Not keep firearm safely - not prohibited firearm/pistol under s39(1)(A) of the Act.

3. The Applicant entered into a 12 month good behaviour bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999 for the drug offence, and was sentenced to a Community Service Order of 60 hours for each of the firearm and weapon offences. On 13 January 2006, the Applicant's Category AB Firearms Licence was revoked on grounds that the Applicant was not a fit and proper person to hold a licence and that it was not in the public interest for the Applicant to hold a licence.

4. Around ten years later, on 8 November 2016 the Applicant lodged a new application for a Category AB firearms licence for the genuine reason of Recreational Hunting / Vermin Control. The Applicant admitted to his previous adverse firearm licencing history and supplied a copy of his Pensioner Concession Card which listed the Applicant as receiving a Disability Support Pension. Additional documentation was provided to the Respondent to assist with the review, including medical records and reference letters.

5. On 22 August 2017, the Respondent sent the Applicant a letter advising him that a decision had been made to refuse the Applicant's Category AB firearms licence. The Applicant sought internal review of that decision on 19 September 2017, attaching a medical certificate and additional reference. The Respondent affirmed its decision, with the outcome and reasons provided to the Applicant on 20 March 2018 (the Reviewable Decision). The Applicant applied to the Tribunal for review of the Reviewable Decision on 20 April 2018.

6. The Respondent conceded that the Applicant was accepted as a man of good character, for the purposes of being a ‘fit and proper’ person under the Act. The only issue in dispute was whether it was in the public interest pursuant to s11(7) of the Act for the Applicant to hold a firearms licence.

Legislation

7. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1)(c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act).

8. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

9. The underlying principles of the Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

10. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].

11. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest. A discussion of relevant case law concerning section 11(7) of the Act was set out by the Tribunal in the case of Joseph v Commissioner of Police NSW Police Force [2014] NSWCATAD 46:

56   In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the Appeal Panel said, in the context of the licensing regime for the security industry, that the 'public interest' is an inherently broad concept giving the Commissioner, and the Tribunal on review, the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual: at [25].

57   The 'public interest' allows, a consideration of 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 Commission of Police, NSW Police Force [2013] NSWADTAP 16.

58   The underlying principles of the Act stated in s.3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 9 [at 23].

60 In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28] ('Ward'), DP Hennessy 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 not pose any risk to public safety.. .

12. The case of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) involved a decision to revoke a firearms licence under section 24(2) of the Act and clause 17 of the repealed Firearms (General) Regulation 1997. In Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89, the Tribunal confirmed that, as a matter of construction, the test laid down in Ward that the Tribunal must be satisfied that there is 'virtually no risk' also applied to the public interest test under section 11(7) of the Act for the refusal of a firearms license. Subsequent cases have affirmed this interpretation of public interest in the context of the Act: Saba v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 129 at paras 63 to 66.

13. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant is granted the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91. The likelihood of risk is to be assessed by reference to prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at para 41.

Consideration

14. Although initially the Respondent submitted that there were three main areas of objection to the Applicant being granted a licence, at hearing it was conceded by the Respondent that one of those areas, being the Applicant’s health, was no longer of concern in the context of a risk to public safety. The Applicant has been diagnosed with a terminal illness, but is currently experiencing improved health. The medical evidence provided by the Applicant supports a finding that his medical condition would not impact on his ability to use firearms without risk to the public's safety.

15. The remaining areas of objection to the Applicant being granted a licence were submitted by the Respondent to be that:

1. The Applicant has come to the attention of police recently in the context of incidents involving aggression; and

2. Although more than ten years had passed since the Applicant’s convictions and licence revocation, the underlying conduct and circumstances surrounding the Applicant's criminal history are still relevant in determining if there is a risk to the safety of the public. These circumstances included:

1. That at the time of the commission of the offences, the Applicant's actions posed a real and appreciable risk to the safety of the public given that both an unregistered prohibited firearm and ammunition for that particular gun were among the items not kept safely;

2. The contravention of authorisation, registration and safe storage provisions of the Act occurred after he had been a holder of an authority for almost 16 years, demonstrating that despite the Applicant having been licensed to possess and use firearms for a lengthy period, he was ignorant of the elementary legislated firearm safe storage provisions and fundamental controls with respect to the possession of firearms.

16. The Respondent referred to a history of incidents in which the Applicant had come to the attention of the local police. In March 2009, the Applicant had reported a number of incidents involving physical aggression to Police, in which he claimed to have been rescuing or assisting victims from a home invasion and domestic violence. On 14 March 2009, he had been abused by two males separately at the Lake Mulwala Hotel. Later that evening, one of the males attended the Applicant's home and an altercation occurred. On 10 December 2011, the police pulled the Applicant's car over and observed that the Applicant had a tomahawk and a large club styled like a walking stick readily available in his vehicle.

17. The evidence presented by the Respondent of the circumstances of these incidents in 2009 and 2011 was insufficient for the purpose of the Tribunal making any kind of finding that the Applicant’s involvement demonstrated a risk to public safety. I place little weight on that evidence and the submission that the Applicant coming to the attention of police in those circumstances provided a basis for refusing the application. The Applicant’s conviction history and his attempts at rehabilitation since 2006 are more relevant to the Tribunal’s determination.

18. At the time he committed the offences for which he was convicted in 2005, the Applicant posed a risk to public safety and was not a fit and proper person for the purposes of holding an authority under the Act. The Applicant’s licence was therefore revoked at that time. In the following ten years since those convictions, the Applicant has worked hard to positively change his life, has demonstrated appropriate remorse and has also spent considerable time devoted to community and charitable activities. His efforts in doing so are commendable and were acknowledged by the Respondent at hearing.

19. The Applicant stated that he was seeking a firearms licence for the purpose of pest eradication, so he could assist people and “give back to the community”, and that his terminal diagnosis was the impetus for wanting to do so. I accept those submissions, however give them limited weight as “the Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety”: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at 69.

20. The Respondent submitted that the Applicant should demonstrate that he is fully conversant with the current controls on the possession and use of firearms before the Tribunal can be satisfied that there is virtually no risk to the public safety. I agree with that submission. I accept the Applicant’s submissions that he had been proactive in improving his knowledge of firearms regulations. His knowledge at hearing of those regulations was demonstrably better than it had been in 2005. The Applicant was able to answer questions put to him by the Respondent regarding the Act’s regulatory framework including safe possession and storage of firearms. He demonstrated knowledge of his previous obligations under the Act and the reasons why his licence was previously revoked, involving possession of a firearm belonging to a deceased friend.

21. However, under cross examination the applicant informed the Tribunal that despite not holding a licence, he had recently purchased a firearm from a dealer. He stated that he had not taken possession of it and it remained at the dealership pending authorisation of his licence application. He stated that as a result of a conversation with the Firearms Registry, he had not applied for a permit to acquire the firearm because this required him to have a licence, which he had not yet obtained. He was not aware whether or not his purchase of the firearm constituted “supply” by the licensed firearms dealer, and although he was aware that it was unlawful for a dealer to supply a firearm without a licence, stated that he had provided the dealer with his licence number. He claimed to have purchased the firearm, but not seen or touched it. He stated that he had misunderstood that the number he had provided as his licence number, 407012054, was in fact the application number for his licence, not the licence number itself.

22. The Applicant also gave evidence that he had been issued three permits to import prohibited weapons pursuant to the Customs (Prohibited Imports) Regulation 1956 via applications for B709B Police Confirmation & Certification for Prohibited Weapons. The Applicant submitted that this evidence supported a finding that there was “virtually no risk” in him obtaining a firearms licence, as the risk had already been rejected as a result of his B709B application permits being granted. However, the applications for permits and the reasons for their granting were not provided to the Tribunal, so I reject this submission.

23. The Applicant has not attended any firearms safety or training courses, and the Respondent submitted that he would not be eligible to attend such a course run by the Sporting Shooters of Australia Association (SSAA) because of his prior convictions. Whilst he could apply to obtain a permit from the Respondent for the purpose of training, the Respondent submitted that previous decisions such as O’Donnell v Commissioner of Police [2009] NSWADT 82 demonstrated that the Tribunal had to be persuaded that the Applicant’s current knowledge of firearms safety was sufficient.

24. On the basis of the Applicant’s evidence in cross examination, I am concerned that the Applicant’s knowledge of the regulatory framework, whilst improved, is selective, and he does not actually have comprehensive knowledge of the regulatory framework relevant to him. Specifically, the Applicant’s attempts to purchase a firearm from a licensed dealer when he has not yet obtained a licence would demonstrate a lack of knowledge of sections 50 and 51 of the Act, regulating the acquisition, supply and obtaining possession of firearms. The Act is clear that a permit or licence is required in New South Wales before an individual can obtain a firearm. The Applicant’s lack of knowledge in this respect, and his attempts to obtain a firearm prior to receiving his licence, constitute a risk to public safety because they demonstrate that his desire to obtain a firearm overrides his compliance with firearms legislation, imposed to ensure public safety and protect the public interest.

25. The Tribunal's consideration is guided by the fact that "the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety”. In the circumstances of the Applicant’s state of knowledge of firearms legislation and his previous convictions, and his actions in attempting to purchase a firearm prior to obtaining a licence, I cannot be satisfied that there is virtually no risk to public safety in the Applicant having access to firearms. I find that it is not in the public interest for the Applicant to have a Category AB firearms licence.

26. I therefore affirm the Respondent’s decision, for the reasons given.

Orders

1. The Respondent’s decision is affirmed.

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

Registrar

Decision last updated: 14 December 2018