Robertson v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 230

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Robertson v Commissioner of Police, NSW Police Force [2024] NSWCATAD 230

Hearing dates:

01 August 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING – firearms – fit and proper person -danger to public safety or to the peace - intemperate habits - unsound mind – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254

Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264

Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Esterman v Commissioner of Police [2014] NSWCATOD 70

Ford v Commissioner of Police [2022] NSWCATAD 87

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Josephv Commissioner of Police [2017] NSWCA 31

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McCulla v Commissioner of Police, NSW Police Force [2024] NSWCATAD 39

McDonald v Director General of Social Security (1984) 1FCR 353 at 357
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Sweet v Commissioner of Police. NSW Police Service [2000] NSWADT 185

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Leisa Bonnie Robertson (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant – self-represented
Respondent – McCullough Robertson

File Number(s):

2024/00074831

Publication restriction:

In addition to the Orders previously made by the Tribunal I make the following Order:
(1) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 1 August 2024 and the contents of all paragraphs in these Reasons marked ‘[NOT FOR PUBLICATION]’ are not to be published or released to the Applicant, or the public.

REASONS FOR DECISION

1. On 7 March 2022 the Applicant, Leisa Bonnie Robertson applied for a firearms licence. She failed to provide information when requested and her application lapsed. The Applicant applied again on 23 August 2023, but her application was refused. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.

Relevant legislation

2. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

(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.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

3. The Act, in setting out restrictions on the issue of licences, provides, relevantly at s 11:

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

…

(4) Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:

…

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

…

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

...

Evidence

4. The Applicant provided a bundle of documents, including:

1. Correspondence with the agent in relation to her investment property

2. A copy of the Court Order made on 21 December 2022

3. Digital National Police Certificate

4. Certificate of Attainment – Firearms Safety Training

5. Longarms licence qualification course certificate

6. Three Rivers Big Game Hunting Club membership

7. Document in relation to vaccine mandates

8. Statements dated 2 August 2022 and 9 November 2023

9. Statement by Alex Pardaigh

10. USB stick: “video footage evidence of police lying in their statements and video of Inverell Police being served papers” which I reviewed after the hearing.

11. Statements by Ben and Tarnya Young, both dated 22 April 2024.

5. The Applicant gave evidence and was cross-examined.

6. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later supplementary documents, being documents served on the Police by the Applicant in January 2022 and detailed below. Material filed by the Respondent included a body worn video (BWV) recording made by Police when they attended the Applicant’s property on 2 August 2022. I also reviewed this BWV after the hearing.

7. The Respondent also relied on evidence produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as “[Not for publication]”, and Orders are made accordingly: s 64 of CAT Act.

Tribunal’s approach

8. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT 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: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

9. The Respondent submitted that I should not be satisfied that the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace: s 11(3)(a). Further, the Respondent submitted that I should have reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of her intemperate habits or being of unsound mind: s 11(4)(c). In addition, it was submitted, that issuing the Applicant with a firearms licence would be contrary to the public interest: s 11(7).

Is the Applicant a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace?

10. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression “fit and proper person”, on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

11. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in the context of licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant’s conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

12. The Respondent relied largely on aspects of the Applicant’s interactions with Police, detailed below. The Applicant’s oral evidence addressed each of the Respondent’s identified concerns.

December 2011

13. In December 2011 Police were patrolling in Gilgai following a complaint of an unregistered motorbike and a dune buggy doing burnouts (although, in her evidence the Applicant said there was no motorbike). According to the COPS Event, Police located the rider of the motorbike and the driver and passenger of the dune buggy. Police stopped the dune buggy and spoke to the male driver. As it was raining, Police instructed the driver to turn around and drive the 400 metres home and that they would follow and speak to him there. However, when they attempted to follow the dune buggy through the front gate of the property, the Applicant ran from the front verandah, stood in the gateway and refused to let Police past. In her evidence the Applicant denied she had shut the gate in front of the Polce, but admitted she told Police they could not go through the gate. She said there was “no reason” for them to go through the gate and, at the time, there was a “natural disaster”, by which I understand her to mean it was raining heavily. In cross examination she said the driveway was washed out and the Police car would have become bogged.

14. According to the COPS Event record the Applicant and Police then had an exchange to the following effect:

Applicant: You are not going through the gate.

Police: Move we need to speak to the guy driving.

Applicant: I don’t give a fuck you are not going through there.

Police: Who do think you are?

Applicant: Who do think you are? This is my place.

Police: We are the Police and we need to speak to the guy driving.

Applicant: I don’t care that you are the Police, get a warrant. I don’t like your attitude.

Police: I don’t like your attitude, there is no need to swear at us we are not swearing at you.

15. There was reportedly a further exchange in which the Applicant sought the officer’s name so she could make a complaint about him.

16. When Police spoke with the Applicant she asked them to back up their vehicle so she could get her ute out of the shed, which they did. The Applicant reportedly approached the Police vehicle, stood next to the passenger side door and knocked on the window. Senior Constable Savins put his hand up to tell the Applicant to wait, but she opened the door and placed her body on the inside of the door a few centimetres away from Police in what was considered an aggressive and intimidating manner. In cross examination the Applicant denied that she had tried to open the Police car door.

17. Senior Constable Savins reportedly told the Applicant to move away so he could close the door, but she did not. Following two further requests, the Applicant still refused to move and Senior Constable Savins attempted to grab the door handle to close the door, but the Applicant had her weight against the door. Senior Constable Savins said “move away now”, pushed the Applicant on the right shoulder whilst he was seated in the vehicle with his seatbelt on. The Applicant then yelled that she had been assaulted and she would have him charged. The Applicant was asked to move but she did not. When Senior Constable Savins attempted to push the Applicant, the Applicant’s friend stepped in and prevented it. The Applicant, again, yelled that she had been assaulted and that she was going to make a complaint about him. The Applicant began yelling “he fucking assaulted me”. At that time, Senior Constable Savins got out of the vehicle as he believed a physical altercation was about to occur.

18. Police had a further interaction with the Applicant:

S/C Savins: As soon as we speak to [the driver of the buggy] and get his name we are going to leave.

Applicant: You aren’t going anywhere, I am going to get some other police to come here now,

S/C Savins: There aren’t any more.

Applicant: I am going to call Inspector O’Brien

19. The Applicant then spoke to her two associates (being her friend and partner) and told them not to speak to the Police or to give their names.

20. She demanded Senior Constable Savins’ name, which he gave, and again she said she was going to make a complaint about him. In cross examination she described him as being “loud and obnoxious” and that “just because he was a Police officer he thought he could do whatever he liked on [her] property”. She said Senior Constable Savins’ evidence was lies and that his partner had resigned from the Police because she had had to “cover” for him, but other than the Applicant’s assertion, there was no evidence in support of this contention.

21. As a result of the above events, the Applicant was charged with Resist or hinder police officer in the execution of duty contrary to s 546C of the Crimes Act 1900 (NSW). On 15 June 2012, the Applicant was found guilty but the charge was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Applicant said in her evidence before me that she had only pleaded guilty because she got tired of waiting for the matter to come on for hearing because "the Police wouldn't turn up at court". The statements of Mr and Ms Young, who presumably could have given evidence on the Applicant's behalf, if called, rejected the Police version of the events of that day. The Applicant said she had "let it go", even though the Police "had lied" and were "acting illegally". She said in cross examination that the Police had been "proven to have lied", notwithstanding, as was pointed out, she had pleaded guilty and consequently the Police officers had not been required to give evidence. She said, in any event, she could not see how this incident was relevant to her holding a firearms licence.

August 2022

22. According to the Police Fact Sheet, on 2 August 2022 two highway patrol vehicles were parked outside the Applicant’s driveway due to an incident further up the road. Senior Constable Phillips, the driver of one of the Police vehicles, observed the Applicant taking a photograph of the other Police vehicle before she drove out of the driveway, accelerating away; he thought the behaviour was unusual. Later, when the Applicant was driving in the opposite direction to a Police vehicle she flashed her headlights at Police, she said, because she wanted to attract their attention because she had seem someone acting suspiciously. Both vehicles stopped, and the Applicant spoke with Police about a person for whom they had been searching. Senior Constable Phillips then asked the Applicant what her name was and she said “I’d rather not” and drove away. Police conducted a U-turn, caught up to the Applicant with the intention of stopping her (to demand the production of her driver licence and subject her to roadside testing). The Applicant did not stop, notwithstanding Police having engaged their lights and sirens. She continued to drive to her driveway – a distance, she said in her evidence, of 700 metres. She said in cross examination that she was not obliged to stop until she could do so safely. On the BWV she added on at least 2 occasions that she was not obliged to stop until it was safe to do so and (that included that) there were witnesses. She denied that she had said that, although she had written in her statement dated 2 August 2022 that she wanted to have a witness. She said she had not broken the law; Police were looking for someone else and it was nothing to do with her. She said the Police were trying to create a conflict and they were “out to harass” her and “all [Senior Constable Phillips] wanted to do was arrest [her]”. She described him in her statement as being in a “highly agitated state”.

23. She drove up the driveway to the rear of the house and parked in her carport. Police stopped behind her vehicle. When she got out of her vehicle, Police directed her to place her hands on the vehicle, with which she briefly complied. After Police activated the BWV, the Applicant took her hands off the vehicle and moved towards the rear of the vehicle. Police repeated the direction to put her hands on the car and informed her that she was under arrest for failing to stop. Police considered the Applicant was attempting to conceal something in her pocket and observed that it was a phone. She was asked to stop fiddling with the phone, but she continued moving her hands while handling the phone, making it difficult for Police to keep hold of them and to move them into a position for handcuffing. She alleged Senior Constable Phillips was trying to break her phone and that he was trying to hurt her. She also alleged he was attempting to grope her backside, but this was no seen on the BWV.

24. When the Applicant was handcuffed, she was again asked for her identification to which she responded “l don’t have to give you ID”. Police asked her, again, and warned her that if they were unable to establish her identity she would be taken to the Police station. The Applicant said in her evidence that because “the last time she gave her name” (referring to the 2011 event) she was arrested. The Applicant was observed on the BWV to continue to argue with Police. In cross examination she said “[Senior Constable Phillips] was acting illegally in breach of his oath”. He was supposed to protect the community, not be intimidatory.

25. A paddy wagon arrived and Police asked the Applicant to move to it. When Police attempted to lead her that way, she was seen on the BWV to pull against Police. The Applicant was warned not to resist arrest and was escorted towards the paddy wagon where she continued to pull back against Police. She was informed she would be subjected to a frisk search by a female officer. The Applicant was walked towards the side of the paddy wagon, during which she was observed on the BWV to push against Police.

22. At the door of the paddy wagon she said “no, I’m claustrophobic”. Police told her that she had to get in and pushed her forward, but she pushed back. Police told her that she didn’t have a choice and lifted her into the vehicle. The Applicant placed her feet on the sides of the doorway to prevent being placed into the paddy wagon. When she was placed inside, the door could be closed as the Applicant moved her feet out through the door so it could not be closed without hitting her legs. Police informed her that she was resisting and would be charged, and she was directed to get into the vehicle, but she refused. Eventually, Police pushed her legs into the vehicle, closed the door and she was conveyed to Inverell Police Station where she was formally placed under arrest. There she was photographed but she refused to be finger-printed.

23. According to the Facts Sheet, while there, the Applicant was again asked to provide her name and address. Although she ultimately provided that information, she continued to be argumentative. While the Applicant was in custody, Police reportedly completed a Custody Management Record for the Applicant, which is discussed below.

24. As a result of the above incident, the Applicant was charged with:

1. not comply with direction to stop/move etc. light vehicle contrary to s 169A(7) of the Road Transport Act 2013 (NSW); and

2. resist or hinder police officer in the execution of duty contrary to s 546C of the Crimes Act 1900 (NSW).

29. However, on 21 December 2022, the Applicant was found not guilty of both charges and they were dismissed by the Inverell Local Court. The Applicant said in cross examination that “all of the [Police] statements were lies” and there was Police corruption. She said she is bringing proceedings against the officers involved, she said, and was going to add “this” (ie being cross examined) to her complaint. She said Police had breached their duty of care to her. She denied resisting arrest and said that Police had assaulted her. She said in her evidence that the Police had been “proven to be liars” and that the incident should not be held against her in the consideration of whether or not to grant her a firearms licence. In cross examination she said she had “no trouble with Police”.

30. As a result of the dismissal of the charges, the Inverell Local Court issued an Order in the following terms:

Order for Destruction of Photograph, fingerprints, etc.

Any identification material including but not limited to photographs of the defendant, fingerprints of the defendant obtained by Police in connection with this matter H8995118 are to be destroyed and removed from the police system. (Order).

31. As material was still held by Police in relation to the incident of 2 August 2022 eg the COPS Event, the Facts Sheet and the BWV, the Applicant relied on the Order as an example of Police failing to act properly, ie in accordance with the Order.

32. In the Respondent’s submission, the Order was limited to the destruction of photographs taken of the Applicant in custody and the record of her fingerprints (of which none were created) because:

1. Although the term “identification material” is not defined, it appears to derive from the term “identification particulars” in Part 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) which is a reference to “particulars that are necessary to identify a person who is in lawful custody for any offence” including the person’s photograph, finger-prints and palm-prints.

2. the Order appears to have some similarities to the procedure referred to in s 137A of the LEPRA which is directed at the destruction of finger-prints and palm-prints, but does not extend to any other records;

3. the jurisdiction of the Local Court is confined to that conferred by s 9 of the Local Court Act 2007 (NSW) including “a criminal jurisdiction consisting of the jurisdiction conferred on it by or under any other Act or law with respect to criminal proceedings” but which does not include a power to order the destruction of all records held by the NSW Police Force in relation to a particular individual; and

4. if the Magistrate had intended to order the destruction of all records of the Applicant in relation to the incident then the Order would have been expressed in much broader terms

33. Accordingly, it was submitted, the Order did not require Police to destroy all of its records regarding the Applicant and her involvement in the events of 2 August 2022, and consequently the Respondent was entitled to rely upon all of the material now in the s 58 documents material in making the decision under review and can continue to rely upon that material in these proceedings.

34. I agree with the Respondent’s submission that it was not obliged to destroy all of its material in relation to the incident, only that pertaining to the identification of the Applicant in its records. The Applicant herself does not deny that there was an altercation with Police – she referred at length to the perceived improper conduct of Police on that, and other, occasions. Further, the Applicant herself filed a USB which contained BWV footage of the event. For these reasons, I am satisfied that I may view the BWV, both that supplied by the Applicant and that supplied by the Respondent, and consider the commentary in relation to the event as described in the COPS Event and summarised in the Facts Sheet. I observe that the Applicant gave extensive evidence before me in relation to her version of events, both in her oral evidence and in the material she filed.

35. The Applicant was clearly of the belief that, because she was found not guilty of the charges, the Police had been found to be lying about what had occurred. There was no evidence before me, other than the Applicant’s assertion, that this was the basis of the Magistrate’s findings. A verdict of “not guilty” means only that the Magistrate could not be satisfied that the charges were made out beyond reasonable doubt. The Tribunal is entitled to take into account conduct, whether or not that conduct has resulted in an individual being convicted of, or even charged with, criminal offences, in determining whether the issue of a licence is contrary to the public interest: Josephv Commissioner of Police [2017] NSWCA 31 at [62] – [64]. It is the conduct, rather than the conviction, that is of concern to the Tribunal: Esterman v Commissioner of Police [2014] NSWCATOD 70 at [30]. The BWV speaks for itself: in my view the Applicant was observed to be belligerent towards attending Police, and she conducted herself with some irrationality.

Conclusion in relation to the Applicant’s interactions with Police

36. The Applicant has been recorded as being involved in confrontational interactions with Police, as described above. Her conduct included swearing at Police, refusing to comply with Police directions and on the balance of probabilities, likely resisting arrest. The Applicant claimed in her evidence that the Police were “going off” at her, and not the other way round. She said the Police were not acting legally. Mr Young describes the Applicant in his statement as a “calm and helpful” person. This clearly is at odds with what was observed on the BWV.

37. The Respondent referred me to McCulla v Commissioner of Police, NSW Police Force [20241] NSWCATAD 39 (McCulla), in which, like the Applicant, Mr McCulla had a history of confrontational incidents with Police. In considering whether he was a fit and proper person to hold a firearms licence, SM Dinnen said at [82]-[83]:

[82] The Applicant characterised his conduct towards Police as “calling them out”, “expressing his views”, “if he disagrees, he will want to discuss it with them”, “just because a police officer says something, doesn’t make it right”. He emphasised that he ultimately complied with police directions after expressing his views in relation to the safe storage requirements, and when given the official ‘move-on’ direction. Whilst that is true, the Applicant’s compliance came only after arguing with police on each occasion, including raising his voice, talking over the police officers, and refusing to answer questions initially. The Applicant is entitled to his opinion, but the manner in which he has expressed it towards police has escalated any ‘discussion’, to him receiving warnings and arrests. …

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

38. In McCulla, the applicant had erroneously asserted a fundamental right to hold firearms; he failed to comply with a move on direction by Police, and behaved in a confrontational and aggressive manner towards Police and refused to comply with instructions when directed, and physically resisted Police requests and directions. SM Dinnen held at [85]:

…The Applicant seems unwilling to accept, without argument, that he should comply with a request or direction by the police. This is concerning where those directions or requests are being issued for the purposes of public safety.

39. Although the Applicant asserted before me that McCulla had “nothing to do with [her]”, it is clear that there are some similarities between the cases. The Applicant’s inability to follow Police instructions and her engagement in arguments with Police, are indicative of an inability, or at least a reluctance, to accept that she should comply with requests or directions by Police unless she regarded those requests or directions to be lawful. The Applicant’s behaviour also suggests that she has an unwavering view of what are her rights, which are, in some respects, eg “the right to bear arms”, misguided. She decides what is within the scope of the law and responds with hostility when attempts are made by Police to take steps to enforce a law with which she may not agree. I regard this attitude as being of particular concern, given the role of Police in enforcing the Act.

40. These incidents, particularly when viewed collectively and assessing the Applicant’s conduct as a whole, demonstrate the Applicant’s tendency to act with belligerence, irrationality and volatility, and with disregard for public safety and the peace. In view of her conduct, I cannot be comfortably satisfied that the Applicant’s possession and use of firearms will not create a danger to public safety or to the peace.

Is there reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of her intemperate habits?

41. The Respondent also submitted that I should have reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of her intemperate habits or being of unsound mind.

42. In McCulla at [95] the Senior Member wrote:

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

43. I agree with SM Dinnen’s approach in this regard. Proceeding on the basis that “intemperate habits” is confined to alcohol (and presumably also drugs) there is no evidence that the Applicant was so afflicted. The available examples of her conduct do not amount to a “habit”.

Is there reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because she is “of unsound mind”?

44. In Sweet v Commissioner of Police. NSW Police Service [2000] NSWADT 185 the Tribunal considered the meaning of “unsound mind” in the context of the Act. The Tribunal explained at [27]:

... To be of “unsound mind” a person’s mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...

45. The Applicant’s Custody Management Record (CMR) for 2 August 2022 records that the Applicant refused to identify a next of kin and refused to state whether she was an Aboriginal or Torres Strait Islander.

46. Relevantly, she also reportedly answered “Yes” to the question “Do you have a history of, or do you currently have, a mental illness” and indicated that she had several mental illnesses including PTSD and anxiety; and that she did not current take any medication for those conditions nor was she receiving treatment. She also reportedly answered “No” to the question “Is this the first time you have been arrested and placed in police custody”, which was clearly incorrect.

47. In her evidence, however, the Applicant denied ever “filling out” or answering a CMR. Further, the Applicant again denied ever having been held in custody. I accept that the Applicant may not personally completed the form, but consider it highly unlikely that such a form could have been completed without input from the Applicant.

48. In her statement dated 2 August 2022, which she said she wrote the night of the incident, she wrote in relation to the events of that day:

1. “l suffer from PTSD and was feeling extremely vulnerable while being brutally (sic) handled with my hands behind my back.”

2. “l protested to being placed in a confined space, informing the officers that I have a medical condition of PTSD and that I suffer from claustrophobia”, and

3. “again explaining to the police that I am claustrophobic and that I have PTSD and anxiety…”

49. In cross examination she said that she had suffered PTSD in the past and that, if she had “residual effects” of PTSD, the incident “wouldn’t have helped”.

50. As a result of the concerns arising from the Applicant’s disclosure that she suffers (or has suffered) from PTSD and anxiety, on 12 October 2023, the Respondent requested that the Applicant undertake a mental health risk assessment. The Applicant declined to do so, stating that it would take more than three months to get an appointment with a psychiatrist and would cost $1000, and that there was no evidence or reason to assume that she had ever been a threat to any person and therefore she was not going to spend that money when there was no reason to refuse her firearms licence application. She said that if she had felt she needed a psychiatrist she would have seen one. Further, any medical information should be kept private and not put on Police databases. She said this request was an example of Police corruption – because she had been found not guilty of offences in 2022 the Police were now trying to “block” her doing anything she wants to do (ie get a firearms licence).

51. She denied having PTSD, and referred to the refusal decision that having PTSD is not necessarily a reason to refuse a firearms licence. This is not, however, an accurate account of the refusal decision. She acknowledged that if someone has shown to be a risk to another person because of mental health issues that may be a problem, but that did not apply to her. Further, she did not consent to any medical information ever being put on any Police record.

52. She pointed out that, in any event, the application form asks if an applicant having had a mental or nervous disorder or illness in the last 12 months to which she had accurately answered “no”.

53. In her evidence the Applicant said that she may have had PTSD in 2018, 2019 and early 2020 as a result of a car accident in which she had seen “people decapitated” about 15 years ago and an abusive relationship “years ago”. Some Army mates thought she might have PTSD, and she agreed. She said she saw a counsellor (who was her tenant) who thought she may have PTSD, but it was never clinically diagnosed, and it “passed”. She said, when cross examined, that she had seen a psychologist about 3 years ago. She said she may have suffered a little bit of anxiety in 2022. At the time she applied for her licence she did not have PTSD.

54. As to claustrophobia, she said that even if she is claustrophobic, this would not affect her ability to possess firearms.

55. The Applicant has indicated that she had, at least in 2018-2022, suffered from PTSD and anxiety. The extent of her present mental health is, however, unclear; it is unclear from what mental health condition(s) the Applicant has/had suffers/suffered; whether she took medication to treat any such condition; if she sought treatment for any such condition and when; and whether there is any risk of relapse. Without medical evidence in relation to the Applicant’s mental health I am unable be satisfied that there is virtually no risk to the public if she were to be granted a firearms licence, in circumstances where the Applicant, when engaged in a belligerent exchange with Police relies on a claim that she suffers from mental illness(es). Further, her irrationality and volatility towards Police described above also gives rise to a reasonable concern that she may have mental health issues such that she may not personally exercise continuous and responsible control over firearms.

56. Notwithstanding my concerns about what appears to be the Applicant’s fixation on allegations of Police corruption and assertions that she may have suffered from mental health issues at some stage I cannot be satisfied that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because she is “of unsound mind”.

Public interest

57. The Respondent also submitted that issuing the Applicant with a firearms licence would be contrary to the public interest.

58. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing.

59. The discretion to make a decision in the public interestis not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The underlying principles stated in s 3(1) of the Act 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: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

60. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. The principle in Ward 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

57. The Applicant said that she seeks a firearms licence to shoot on her property “for the humane destruction larger vermin/appropriate actuation, calibre, and for target animal (vermin)”. She is not a farmer although she has a rural property. Where there is the possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

58. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account and this cannot be outweighed by an applicant’s interest in holding a firearms licence. Minimal, fanciful or theoretical risk can be excluded from consideration: Hook v Commissioner of Police [2020] NSWCATAD 250 at [77] – [80].

59. In Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264, the Appeal Panel said at [74]:

The question is whether there is in all the circumstances a real and appreciable risk to the public if the person has access to firearms: see Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32]; Rial at [32]. These considerations have been held to apply to the assessment of both a person’s status as a fit and proper person and the public interest: see Masterson v Commissioner of Police, NSW Police Force [2017] NSWCATAP 206 at [130] - [134].

64. The Tribunal is required to look at the Applicant’s conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87 at [59].

The Applicant and her ex-husband - March 2023

65. The Applicant complained to Police that she had received a number of text messages from her ex-husband, Jason, asking if he could move into their jointly-owned house as he had a new girlfriend and they are having a baby together. The Applicant refused as it is an investment property (the investment property) which has been tenanted. The Applicant was concerned about the text messages as she did not want Jason to message her other than through a solicitor. The Applicant told Police she did not want him to continue messaging her but that she held no fears for her safety. The Applicant was informed to reiterate to Jason that she did not want any contact unless it is through a solicitor, and for her to block his number.

The Applicant and her ex-husband - 31 January 2024

66. On 31 January 2024, Jason attended Armidale Police station to report the disappearance of CCTV cameras from the investment property, alleging that they had been stolen by the Applicant. Jason informed Police that the [named] tenant saw the Applicant at the premises on 28 January 2024 but when Police spoke with the tenant he confirmed only that the Applicant had attended the premises but could not confirm that she took the cameras.

67. Police were unable to contact the Applicant and no further action was taken. Jason informed Police that he believed the Applicant was doing “trivial acts” like stealing the cameras to cause issues for the “mediation” in respect of the property. While Jason did not hold fears for his safety, he held fears that the Applicant’s behaviour would continue. The Applicant said in her evidence that it was not illegal for her to take the cameras from the property which she (and Jason) own. She said one of the tenants did not want them anyway.

68. The Applicant claimed an AVO has been issued against Jason to stop him communicating with her or the tenants, although it is yet to be served on him. The Applicant said that Jason keeps annoying the tenants so that they will move out. She thinks Jason also broke into her home.

69. While these incidents between the Applicant and her ex-husband are, of themselves, relatively benign, they suggest an ongoing difficult relationship breakdown, especially in relation to how the investment property is to be dealt with. Of particular concern is the Applicant’s contention that her ex-husband broke into her home – the very location where she plans to store her firearms. This may present a real and appreciable risk to public safety.

Applicant’s support of Velvet Revolution Australia

70. On 29 January 2022, the Applicant together with approximately 29 others (all of whom were members of the Velvet Revolution Australia) attended Inverell Police Station. The Applicant, who acted as a representative of the group, informed Police she wished to serve papers on Police and read aloud a three-page document which detailed “service”. Police accepted the documents but explained that because it was busy they would not be listening to the documents being read aloud. The Applicant then handed Police documents titled:

1. International Common Law Court arrest warrant

2. Charge and Summons Sheet

3. Court Orders Confirming the Verdict of the Court

4. Protection Order

5. International Common Law Court Warrant of Seizure and Expropriation.

71. The Applicant was asked in cross examination about the “Velvet Revolution” group. She said it was like a group against forced mandates for vaccinations. They were trying to get the Police to act “in a legal way under the Constitution” but the government was acting illegally. The Applicant denied still meeting with that group.

72. The Applicant said in cross examination that she had been acting as a “common law sheriff” and service of the documents was part of her training. A common law sheriff, she said, could issue warrants on behalf of the “common law court” which acts “under the common law”. She said she had served or was involved in serving Common Law “legal papers” on Police at Inverell, Tamworth and Armidale. She said all of the paperwork was “made legal” by the Supreme Court of Victoria, but there was no evidence in support of that contention. In her statement of 2 August 2022 she said she was a member of a Common Law Legal Assembly, Know Your Rights Group and a member of other common law groups.

73. The “protection order” was signed by the Applicant. She said in her evidence that its “purpose” was because she was unable to complete her nursing training unless she took a “trial” COVID vaccine – “a poison” - or she would lose her job. She said that that requirement “went against the Constitution and the Nuremberg Code”.

74. As to the “International Common Law Court arrest warrant” which claimed a number of government officials eg the “purported” Prime Minister, Governor General and State Premiers had been charged, convicted and sentenced and for whom Arrest Warrants had been issued, the Applicant said that they had mandated laws that were not legal and that her job as a trainee sheriff was to “deliver the paperwork”, to the Police. She had signed the charge sheet and summons as the informant, “Flesh & blood man/woman No Prejudice, For Queen and country!”.

75. The Applicant agreed in cross examination that the material in the documents reflected her beliefs. She said she believed the common law court had as much right to convict and sentence persons “as any other court”. She was referred to the “charge sheet” in which, at Count 4, the Prime Minister, Governor General and State Premiers were charged with unlawfully taxing people with property rates through a “nonentity” known as “local government” and trying to hide the crime behind “State constitutions”. She explained that State and Local Governments act illegally. She said that where any government issues laws that are unlawful, that is illegal and they should be taken to court so it does not continue.

76. She included the Police as acting under an illegal entity if they do not comply with Court orders and they should be held accountable. She said that individuals should not have to comply with laws that are illegal.

77. Another Count (46) referred to the illegal raising of revenue including through the issue of licences. As to whether she considered firearms licences to be illegal she said any requirement needed to be under the Royal Assent and otherwise were not officially legal. She agreed that there should be means of regulating firearms, although she did not think the present regime was legal. She said she still follows the law and just fights against the ones that “go against the law”. She said the laws apply “to a degree” if there is not Royal Assent.

78. As to Count 59 which specifically refers to firearms licences and states that licences should not be required for longarms, and that there is State by State discrimination. She said the requirement is against the Constitution but firearms law is not one she would not follow. She was also referred to Count 43 which referred to the “right to bear arms”, which she said she agreed with as it is “in the Constitution”. She said the Army has firearms and everyone should have the right to defend themselves.

79. Count 56 refers to the illegality of State Police Forces having military grade equipment. She said a lot of laws had been brought in unlawfully.

80. [Not for publication]

81. [Not for publication].

82. [Not for publication]

83. For these reasons, I am comfortably satisfied on the basis of the material before me that it is not in the public interest for the Applicant to hold a firearms licence as there is a real and appreciable risk to public safety.

Conclusion

84. Having concluded that the Applicant is not a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act, and that it is not in the public interest for her to hold a firearms licence within the meaning of s 11(7) of the Act, the correct and preferable decision is to affirm the Respondent’s decision to refuse the Applicant’s firearms licence application, for the reasons given above.

decision

85. The decision under review 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: 12 August 2024