Papworth v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 167

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Papworth v Commissioner of Police, NSW Police Force [2023] NSWCATAD 167

Hearing dates:

12 December 2022

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

1.    The decision under review is set aside.

2.   The application for a category AB firearms licence is granted.

Catchwords:

ADMINISTRATIVE LAW – firearms licence – refusal of licence application – whether applicant fit and proper person – whether in the public interest to hold a licence.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

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

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

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

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Mewborn v Commissioner of Police, New South Wales Police Force (2009) NSWADT 24

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

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

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

Category:

Principal judgment

Parties:

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

Representation:

Solicitors:
DLH Solicitors (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/00259036

Publication restriction:

Nil

Reasons for Decision

Introduction

1. In these reasons I have anonymised the names of some individuals to protect their privacy. I have referred to the various individuals as AA, BB, CC, and DD respectively. I have also replaced the names of those individuals where I have quoted from some material that has been put in evidence.

2. This is an application by Mr Scott Papworth (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Act”). The delegate decided to refuse the Applicant’s application for a category AB firearms licence.

3. The Applicant requires a firearms licence to effectively deal with animals and vermin on his rural property and other rural properties where he works.

4. The Respondent submits that the correct and preferable decision is for the application to be refused because the Applicant is not a fit and proper person, and it is contrary to the public interest for the Applicant to hold a firearms licence.

5. The reasons for the refusal relate to the Applicant’s criminal history from 2001 through to 2010. The Respondent has provided the following summary:

1. The Applicant held a firearms licence from 2002 to 2007. There is no evidence to suggest that the Applicant has ever failed to comply with safe storage or handling of firearms requirements, or that he failed to meet his prescribed licence club attendance requirements during the times of holding a valid licence.

2. In 2001 and 2004 the Applicant was charged with offences of destroy or damage property.

3. It was alleged that in October 2009, the Applicant was involved in a serious physical altercation with another individual (“AA”) at the Gulgong bowling club (“the October 2009 incident”). It was alleged that the Applicant kicked AA to the right ankle, breaking the ankle. AA did not report the alleged incident until some time later, allegedly due to fear for his safety following threats from the Applicant, and he requested that no action be taken against the Applicant.

4. In January 2010, the Applicant was arrested and charged with the following offences:

1. Stalk/intimidate intend fear of physical/mental harm T2 Crimes (domestic and Personal Violence) Act 2007 13(1);

2. Stalk/intimidate intend fear of physical/mental harm T2 Crimes (domestic and Personal Violence) Act 2007 13(1);

3. Drive vehicle recklessly/furiously or speed/manner dangerous Road Transport (safety and Traffic Management) Act 1999 42(2) Crimes Act 1900 33b(1)(A); and

4. Use etc offensive weapon w/i to commit indictable offence T1 Crimes Act 1900 33b(1 )(A).

5. The charges relate to an incident which occurred in January 2010 (“the January 2010 incident”), where it was reported that the Applicant intentionally hit the rear of a vehicle that was being driven by AA. AA was in a relationship with the Applicant’s ex-partner (“BB”). The Applicant’s son (“CC”) was in AA’s car at the time of the incident. It was alleged that the Applicant hit the rear of AA’s vehicle and the vehicle flipped, landing on its side. It is then reported that the Applicant drove past the overturned vehicle doing a U-turn before stopping next to the vehicle and allegedly walked towards AA holding a baseball bat. AA then left the scene with fears for his safety. BB drove to the scene a short time later and also reported seeing the Applicant holding a baseball bat.

6. The Applicant was subject to two Apprehended Violence Orders (“AVO”) for the period 24 June 2020 to 23 June 2011 in respect of AA, BB and CC. It is also alleged that the Applicant was abusive towards BB’s mother during a telephone call in April 2010. BB’s mother contacted police and requested that police speak to the Applicant and a record be made but she requested that no other action be taken.

7. In March 2022, the Applicant was shot and sustained serious injuries after a former acquaintance of the Applicant (“DD”) attended the Applicant’s property (“the shooting incident”). The Applicant and DD had not had any contact for approximately 6 years and the previous interactions were amicable and incident free. DD is AA’s brother. The Respondent’s electronic database (“COPs”) records that on the morning after the shooting incident, DD attempted to set himself alight and use a knife to self-harm when arrested by police.

8. During a search of the Applicant’s property as part of an investigation of the shooting incident, the Applicant was found to be in the possession of two small bags of cannabis. He was issued with a caution for the offence of ‘Possess prohibited drug’.

9. The Respondent’s records indicate that DD is in custody awaiting trial and that AA is deceased.

6. The Facts Sheet prepared in relation to the January 2010 incident, as amended to preserve the identity of individuals other than the Applicant, stated:

The Applicant and BB were in a relationship for eight years which ended in 2007. The pair have a son as a result of the union. BB started another relationship with AA about 1 1/2 years ago. The Applicant and AA have not got along during the 1 1/2 years.

On Sunday the 24th of January 2010, at 10pm The Applicant, in his 1998 Mitsubishi Triton, followed the AA in his Toyota Hilux along the Castlereagh highway. AA was on his way home with CC, 2 1/2 years, sitting in the passenger seat. AA and BB are in a domestic relationship and have been for 1 1/2 years. AA often has CC with him.

The Applicant in his vehicle has deliberately hit the rear of AA’s vehicle. AA’s vehicle was travelling at an estimated speed of 90 – 100 kms at the time of impact. AA has lost control of his motor vehicle due to the hit. AA has grabbed hold of CC who had been flung from his seat. AA has tried to correct the vehicle trying to miss a tree when the vehicle has flipped landing on its right side.

The Applicant continued past the overturned vehicle which AA and CC were in. The Applicant has done a u turn and stopped next to AA’s vehicle.

AA saw the Applicant walking towards him with what he thought was a baseball bat. AA placed CC down so he was standing upright on the right side door, undone his seatbelt and climbed out of the passenger window. AA yelled "CC's in there" before jumping a fence during which AA sustained cuts to his legs. AA has run through the paddock telephoning BB and another friend. AA felt intimidated by the Applicant approaching him with a baseball bat.

BB received a call from AA stating "a car ran the back of me and the ute has rolled." BB starting driving along the Castlereagh Highway when she received a call from the Applicant stating "hope your happy. I just ran your fuckwit boyfriend off the road."

BB arrived a short time later and saw her boyfriend, AA’s ute rolled over.

BB saw the Applicant, and he was holding a metal baseball bat.

BB approached the Applicant. The Applicant started yelling at BB. BB told the Applicant to calm down. The Applicant said "Don't tell me to calm down, or I’ll wrap this baseball bat around your head." This caused BB to fear for her safety.

BB could hear her son screaming from the ute and pushed the Applicant out of the way and ran to her son still in the rolled ute. The Applicant was still yelling, when BB turned and said "your lucky you didn't kill CC." The Applicant replied "If that happened I would have killed us both."

BB with CC has returned to her car, drove home and called police. AA has run about 250 meters to Beryl Rd and waited for his friend to arrive. AA has hopped into his friend’s vehicle, driven back past his rolled ute. AA could see BB, CC and the Applicant were arguing. The friend of AA has contacted police, whist driving AA to BB's parent house. BB and CC arrived a short time later.

7. The COPs entry in relation to the shooting incident states:

The Applicant has had past conflict with AA. It is believed this conflict was in relation to a woman. This may have led to AA taking his own life in February 2013

The Applicant and DD had further conflict post death of AA however further information on this is limited at this time. It is believed the Applicant and DD last interacted with each other approximately six years ago.

The victim is believed to have worked on a property in the last two weeks to the west of his which is the father of DD and AA. Detectives have been told this interaction was amical and incident free.

Between 2120 and 2145 on Thursday 10 March 2022 DD attended the Applicant’s home and parked out the front of the house. The Applicant was in bed and arose to see who had arrived at his house. The Applicant exited home wearing only a pair of boxer shorts and approached DD who was seated in his vehicle. It is believed an argument occurred, before DD produced a rifle and said, "I've got something for you". The Applicant took a hold of the firearm and managed to pull it free from DD.

DD exited his vehicle and violently fought with the Applicant, who fell to the ground. DD repeatedly kicked and punched the Applicant around the head. As a result, the Applicant suffered extensive injuries to his face causing swelling and bleeding.

The Applicant got to his feet, in possession of the rifle and commenced moving towards the front door. The Applicant felt something hit him in the right side of his back as he reached the house whilst he heard a gunshot. The Applicant entered the house and sought refuge in the bathroom at the rear of the house.

At the time, the witnesses, along with a six month old baby were hiding in the house. Witness 1 called 000 and attempted to help the Applicant.

It is believed a short time after the Applicant entered the house, DD started the vehicle he had been driving and fled the area.

Police arrived a short time later and established a crime scene. CDA and a Helo attended and stabilised the Applicant. He was found to have an entry wound below his right shoulder on his back, which exited above his right nipple. It is believed his clavicle is shattered as a result of the impact from a projectile.

8. The Respondent considers that the ongoing issues between AA and DD and the Applicant give cause for concern that hostilities towards the Applicant remain and therefore there is a real and ongoing risk to public safety.

The issue for determination

9. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for him to do so.

The Tribunal’s Approach

10. 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”).

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

12. 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 Commissioner to have to prove her case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

13. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, 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.

14. 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 at paragraph [23].

15. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

16. 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 on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.

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

18. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the 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.

19. The underlying principles of the 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.

20. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the 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. ...

21. Section 11(3)(a) of the Act prescribes that a firearms 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.

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

Fit and proper person

23. As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence. The expression “fit and proper person” has been considered in numerous decisions of this Tribunal.

24. The Act places an emphasis on the need for licensees to be 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 Act on numerous occasions.

25. Fitness and propriety is a question 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].

26. In the context of the 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].

27. 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.

28. 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.

29. 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.

30. 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."

Public interest

31. As noted, the Commissioner contends that it is not in the public interest for the Applicant to hold a firearms licence. Section 11(7) of the 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.

32. 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."

33. The “public interest” allows issues going beyond the character of the Applicant to be considered. 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.

34. “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 “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.

35. In considering the public interest, regard must be had to the underlying principle of the Act. 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. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

36. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

37. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).

25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

38. 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: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

39. 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 considered. 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

40. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes a number of records relating to the Applicant that date from 2001 to 2022 that are held in the COPs database The Respondent’s solicitors also provided written and oral submissions.

41. The Applicant relies on his own evidence and submission and references from several acquaintances. The Applicant attended the hearing, gave evidence, and was cross-examined. The Applicant’s solicitor also provided written and oral submissions.

The Respondent’s Case

42. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. The Respondent bases her position on the grounds that the Applicant is a not a fit and proper person to have a firearms licence, and that it is contrary to the public interest for him to do so. The Respondent points to several issues in support of her position. I have set out the summary of the relevant background above.

43. The Respondent draws particular attention to the Applicant's past history of violent and aggressive behaviour in his interactions with AA and DD. The Respondent contends that those interactions appear to have resulted in the March 2022 shooting incident.

44. The Respondent notes the severity of the shooting incident, and that it resulted in the Applicant being shot and severely wounded in the close proximity of his children and partner. It is the Respondent's position that the Applicant should not hold a firearms licence at this time because of his current circumstances.

45. The Respondent acknowledges that AA is deceased, and that DD is in custody awaiting trial. However, the Respondent contends that it is clear that there are ongoing tensions between the Applicant and members of DD’s family. This animosity has been ongoing for over 10 years and the Respondent contends that it poses a significant risk to public safety.

46. The Respondent submits that the Tribunal cannot be satisfied that there is no risk associated with the granting of the Applicant's firearms licence and submits that it is not in the public interest for the Applicant to be granted a firearms licence at this time.

47. Accordingly, the Respondent submits that the correct and preferable decision is for the Tribunal to affirm the decision to refuse the Applicant’s application.

The Applicant’s case

48. As noted, the Applicant has previously held a firearms licence. The licence was issued in August 2002 and reissued in October 2007. The licence was revoked in 2010 as a result of the AVOs referred to above. The AVO’s were enforceable until 23 June 2011.

49. Section 11 (5)(c) of the Firearms Act 1996 prescribes that the Commissioner must not issue a licence to a person who has, within the period of 10 years before the application for the licence was made, been subject to an apprehended violence order. The Applicant has not been subject to any apprehended violence order in over 10 years.

50. The Applicant provided a written statement in relation to the events that have been referred to by the Respondent. In relation to the October 2009 incident, he wrote:

In October 2009, AA approached me and taunted me twice that night. As I walked out the Bowling club, he had come after me and tackled me from behind and kicked me on the forehead. To my knowledge, no authorities were notified regarding this. To my surprise, after my firearms refusal, I found out that AA made a statement back in 2010 that I have started the fight and I have threatened him which are untrue.

51. In relation to the January 2010 incident. He wrote:

Prior to the incident in 2010, whenever I have my son home, he would call me nasty names. When I ask where he learned those words from, he would say AA told him to say that to me. I have contacted the cops twice and asked if they could do something regarding this, and they said there were nothing they could do as I didn’t have enough evidence.

These circumstances, with my reports ignored, led me to a very bad decision that I regret back then and up until now.

My ex-partner and I have decided to try and work things for our relationship but when I saw his car following hers, I decided to go find out what was going on. Unfortunately, this led to a silly decision to follow his car. When we all came to a stop, I found out that my 3.5-year-old son was in his vehicle without a car seat.

I have taken full responsibility of what I have done and there are no excuses for my actions hence why I have pleaded guilty to the charges. Two of the charges were AVOs placed by the police. This also resulted in losing my firearms licence.

I have fully accepted the consequences and abided to the punishments. The biggest punishment is knowing that I could have injured my own son due to my actions.

52. In his evidence before the Tribunal, he denied that he had carried a baseball bat as was alleged. He said that he carried a jack handle which, if necessary, he proposed to use to release AA from the vehicle.

53. In relation to the shooting incident. He wrote:

On the 10th of March 2022, an unfamiliar vehicle drove in and parked in our yard. We are not familiar with the car, so I decided to go out and see who it was. As I approached, I recognised that the driver was DD. I asked him twice what he was doing, and he said he had something for me. He then stuck a barrel of a rifle out the window, so I had to step back and push it away. He then got out of the car, and I grabbed the gun to hold it away from me and he fired off a shot. I managed to hold the gun with both hands as he tried to reload it. We got in a struggle and wrestled me to the ground. He then repeatedly hit me on the head whilst I still have both hands on the gun. I had gotten up away from him and head towards the house with the gun in my hand that I have gotten off him. As I reached the door of the house, he shot me twice in the back with another gun.

I managed to get in the house, put the rifle down on the ground and called out for my wife who was hiding with the children. I told her not to touch the gun. I went to sit in the bathtub until help arrived.

I was completely surprised with what he has done as I've never had anything to do with him nor know him well. The only time I have spoken to him was back when we were both working at the mines but for different companies. On two occasions, he had to assist our team and worked on my shift. He took instructions and worked well. There were no issues that I could have picked. I never knew that he had an issue let alone held a grudge with me for something that happened with his brother 12 years ago.

54. In relation to the COPs entry related to the shooting incident, the Applicant strongly resists the Respondent's suggestion that he somehow caused AA to take his own life. He submits that such speculation is baseless and irrelevant.

55. In regard to the cannabis, the Applicant explained that he had been experiencing chronic pain after a workplace accident some years previously and someone had given him the cannabis. He said that he had intended using the cannabis for pain relief but had not liked the effect of smoking it and the drug had then been left in a drawer for some years and he had forgotten about it.

56. In relation to his current circumstances, the Applicant wrote:

What I have done in the past was a defining moment in my life that has made me a better person today. I am now happily married and now have another son. BB has moved on with partner and kids. It is very important that our kids grow up knowing that parents and stepparents get along. I ask you to kindly judge me of the person I am today and not the man that has made a mistake 12 years ago.

57. The Applicant denies that there are any ongoing hostilities between himself and DD’s family. He said that the suggestion of hostilities is entirely speculative and that any risk resulting from his dealings with AA and DD is theoretical and fanciful. It is submitted that only real and appreciable risks need to be considered. Minimal, fanciful or theoretical risks can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service at paragraph [32].

58. In relation to the Applicant's criminal history, his solicitors rely on views expressed in Mewborn v Commissioner of Police, New South Wales Police Force (2009) NSWADT 24 in support of the submission that any consideration of an applicant's criminal history should also involve a query as to whether such incidents involve firearms. There is no suggestion that the Applicant ever misused firearms. Further, there is no evidence logically connecting the Applicant's past history with the shooting incident. The evidence is that it was a sudden, unprovoked attack by a perpetrator who was clearly mentally unstable and suicidal.

References

59. The Applicant has provided references from two employers and BB.

BB’s reference

60. BB is the Applicant’s former partner. In regard to the October 2009 incident, she confirmed that the allegation that the Applicant got into a physical altercation with AA that resulted in injury to AA’s ankle was false. She stated:

It was said that AA never reported it due to fear of his safety. I can confirm that these allegations were false. I believe there were enough eyewitnesses and video footage at the time showing that AA keeps approaching the Applicant; hence he never reported it.

61. BB stated that she has known the Applicant since she was 16 years old and can confirm that the Applicant “has utmost respect for firearms, and he is not a type to threatened someone with this or start a physical fight with anyone”. She also confirmed that the Applicant was never abusive, verbally or physically, towards her when they parted ways in 2017 and went through a property settlement.

Bronwyn Wannan’s reference

62. Ms Wannan has known the Applicant for at least 25 years since he was first employed to assist in developing and operating her property. She now employs him as a part time tractor and machinery operator, and he also manages the property when the manager is on leave or away. He also assists with harvest in preparing the orchard, transporting fruit, and managing up to 50 pickers each day.

63. She stated that the Applicant is “reliable, hardworking and capable of any task involving the use and operation of machinery and is concerned and caring about the welfare and safety of others in the workplace.”

64. She confirmed that she is aware of the Applicant’s history and nevertheless has “no hesitation in recommending the reinstatement of his firearms license”.

Phillip Ridge’s reference

65. Mr Ridge said that he has employed the Applicant at his rural property for three years, part time. He stated that the Applicant “has shown the utmost integrity in his work as a farm assistant. He is extremely capable, trustworthy and reliable.”

66. He confirmed that he is aware of the Applicant’s history and nevertheless can confirm the Applicant’s character is such that he is sure that no further infringement would occur.

67. Both Ms Wannan and Mr Ridge said that it would be an advantage to their operations for the Applicant to have a firearms licence so as to be able to destroy injured stock and deal with vermin.

68. It is submitted that to refuse the Applicant’s application on the basis of historical offending without due consideration of his rehabilitation, insight and all his present circumstances, would be to consider risks which are purely speculative and theoretical, and therefore a failure of the Tribunal to reach the correct and preferrable decision.

Consideration

69. This is a matter in which the Applicant’s background suggests that up until 2010 he engaged in behaviour that involved violence, stalking and intimidation. The revocation of his firearms licence at that time was warranted.

70. However, the evidence suggests that the Applicant has changed his ways and is no longer engages in the same type of conduct that is identified by his record. It is therefore necessary to consider whether there is evidence to suggest that notwithstanding his historical offences, he is now a fit and proper person to hold a licence and that it would not be contrary to the public interest for him to do so.

71. The Applicant’s convictions are not in dispute, but a significant amount of time has passed since the offences occurred. He is clearly remorseful for his conduct.

72. In relation to the October 2009 incident, there is evidence before me that contradicts the information held in the COPs database. The Respondent has not provided any evidence other than the COPs entries on which I could conclude that the Applicant had committed the alleged offence or that the incident had occurred as alleged. In the circumstances, no weight should be given to the allegation.

73. The Applicant gave evidence in relation to the January 2010 incident. He does not dispute the allegation other than to deny that he approached AA with a baseball bat. The Respondent has not provided any evidence to contradict the Applicant’s evidence in that regard. However, that is a minor detail when compared to the substance of the allegation. The Applicant entered a guilty plea in relation to the incident. He has referred to it as a “very bad decision” and a mistake for which there was “no excuse” and which he regretted then and still regrets. He has no criminal history or record of violent behaviour since that incident.

69. In my view, significant weight can be given to the Applicant’s assertion that he has changed his ways.

70. I have no reason to doubt that he is ashamed of his criminal history or that his expressed remorse is genuine. In light of the references that he has provided there is good reason to accept that he is highly regarded by his employers notwithstanding his past.

71. I accept that the shooting incident was a sudden, unprovoked attack. The COPs entry relating to DD’s conduct the following day supports the Applicant’s submission that DD was apparently mentally unstable and suicidal. The respondent was given the opportunity to provide a copy of any statement by DD but nothing was forthcoming. In the circumstances, I accept the Applicant’s evidence in regard to that incident.

72. I note the Respondent’s assertion that there might be ongoing hostilities between the Applicant and DD’s family. No evidence has been provided by the Respondent to support that assertion or to contradict the Applicant’s evidence. Similarly, there is no evidence to contradict the Applicant’s assertion that he bears no responsibility for AA’s death. In the circumstances I accept the Applicant’s evidence in relation to the shooting incident and I draw no inference that the incident reflects negatively on the Applicant’s character.

73. The Applicant held a firearms licence for several years and there is no suggestion that he has ever misused firearms. If prior behaviour can be regarded as being indicative of future conduct it is reasonable to expect that the Applicant would not misuse firearms if a licence were granted.

74. I consider that the Applicant’s record over the past ten years demonstrates reformation of character.

75. I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I do not agree that it would be contrary to the public interest for him to do so. I am satisfied that there is virtually no risk to public safety if the Applicant is granted a firearms licence.

76. That being the case, it is my view that the correct and preferable decision is to set aside the Commissioner’s decision and to grant the Applicant’s application for a category AB firearms licence under the Act.

Orders

1. The decision under review is set aside.

2. The application for a category AB firearms licence is granted.

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: 27 June 2023