Ryan v Commissioner of Police

[2021] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ryan v Commissioner of Police [2021] NSWCATAD 23

Hearing dates:

11 December 2020

Date of orders:

05 February 2021

Decision date:

05 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

LICENSING -  firearms licence – revocation– exercise of discretion  - public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2006

Cases Cited:

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

Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

McDonald v Director General of Social Security (1984) 1FCR 353

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Shi v Migration Agents Registration Authority [2008] HCA 31.

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Jade Ryan (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Silkman Hockey (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/00239501

Publication restriction:

In addition to the Orders set out above, pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the transcript and recording of the confidential hearing in these preliminary proceedings and the contents of all paragraphs in these Reasons marked “[Not for publication]” are not to be published or released to the Applicant or the public.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

Background

1. On 2 December 2017 the Applicant, Jade Ryan, was issued with a Category AB firearms licence for the purpose of 'sport/target shooting' and 'recreational hunting/vermin control', and, on the same day, was granted a Probationary Pistol Licence, which expired on 30 November 2018. On 15 August 2018, the Applicant submitted a permit to acquire a longarm and on 30 November 2018, she applied for a Pistol Licence (Category H). On 4 February 2020 the Respondent revoked the Applicant’s firearms licence, refused her application for a Category H licence and refused her permit to acquire a longarm. The decision to revoke the Applicant's licence and refuse her application for a Category H licence was based on her domestic circumstances, namely the risk that her partner, Dwayne Higgs, with whom she resides, could gain unauthorised access to her firearm.

2. On 12 March 2020 the Applicant applied for an internal review of the decision to revoke her Category AB firearms licence and refuse her application for a Category H firearms licence. No review appears to have been requested with respect to the refusal of the application for a permit to acquire a longarm. When no response was received, the Applicant applied to this Tribunal for review of the decision: s 53(9)(b) Administrative Decisions Review Act 1997 (ADR Act).

Relevant legislation

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

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 ...

2. The objects of this Act are, relevantly, as follows:

   (a)   –(c)

   (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)   ...

   4. Section 24(2)(a) of the Act provides that a  firearms  licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

   5. Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations. Clause 20 of the Firearms Regulation 2017 (Regulation) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

   6. Section 11(4)(a) of the Act provides that the Commissioner must not issue a licence to a person if the Commissioner has reasonable cause to believe that the applicant may not exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. The section is relevant to the decision to refuse the application for a category H firearms licence. Section 11(4)(a), together with s 24(2)(a) is also relevant to the decision to revoke the Applicant's category AB firearms licence.

   7. Section 11(7) of the Act provides that 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

8. The Applicant provided an affidavit dated 28 October 2020. She also provided a statement by her partner, Dwayne Higgs dated 4 December 2020 and her father, Michael Norman Ryan dated 4 December 2020. The Applicant gave evidence and was cross examined.

9. In addition to the s 58 documents, the Respondent relied on a statement of Constable Keiran Steele dated 19 November 2020, which annexed various Police reports, primarily in relation to Mr Higgs. The Respondent also relied on confidential evidence, including statements by Detective Senior Constable Martin, tendered in closed session, pursuant to orders made under ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Both parties made helpful written submissions.

10. 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. 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]. Under s 28(2) of 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. It is well established that in considering an application for review the 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.

Consideration

11. In summary, the Respondent asserted that the Applicant and Mr Higgs have been the subject of a number of Police reports concerning drugs, break and enter, assault and consorting; and that as a result of Mr Higgs's extensive criminal conduct, concerns are held that the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances. It was also contended that the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme, which, like the firearms licensing regime, is aimed at ensuring public safety. Further, it was contended that the Applicant has demonstrated a lack of understanding of her obligations as a firearms owner to provide an accurate address for safekeeping of firearms.

Applicant’s criminal history

12. In 2007, the Applicant was apprehended on entry to John Maroney Correctional Centre with a small quantity of cannabis and 'speed'. She was charged, and convicted of “possess prohibited drug (2 counts)”; “bring/introduce small quantity of drug into detention centre” and “possess/attempt to, prescribed restricted substance”. She received a fine of $500 for each of the offences. I observe that her conviction precluded her firearms application until 10 years had elapsed: s 11(5)(b) of the Act and Reg 5(1)(b) of the Regulation.

13. The Respondent invited attention to the Applicant having also come to Police attention in relation to the alleged commission of other offences: in 2007, the Applicant used a shovel to hit another vehicle, causing damage and in 2008 the Applicant was involved in an incident of assault and affray, where it was alleged that the Applicant drove over a victim's legs. No charges were brought against the Applicant in relation to these matters; these allegations therefore are untested and, are now, in any event, over 10 years ago. Furthermore, they were known to Police when the Applicant was granted her firearms licence. Consequently, I afford them little weight.

14. The Applicant said in her evidence that she was known to Police because, working in her parents’ pawnbroking business, she was in contact with Police, presumably in relation to items which had been brought to the shop.

Applicant’s traffic offences

15. Since obtaining her driver’s licence in 2003, the Applicant has received a total of 13 traffic infringement notices, most of which were speeding offences. As a result of the infringements, the Applicant's licence was subject to two suspensions for failing to pay a fine, and one three-month suspension for excessive speeding.

The Applicant’s partner, Mr Higgs

16. Dwayne Higgs, according to his statement, commenced his relationship with the Applicant approximately 8 years ago. He has, what the Respondent described as an “extensive” criminal history, although the Applicant’s solicitor, in the application for internal review, challenged that characterisation.

17. In 2010 Mr Higgs was found to have taken and driven a conveyance without consent of owner (conviction proved) – 2 offences. In 2011 he was convicted of steal motor vehicle; robbery armed with offensive weapon and assault with intent to rob armed with offensive weapon.

18. In 2018 the following offences were found proven: attempt stalk/intimidate intend fear of harm (personal) -T2; armed with intent to commit indictable offence common assault; and drive motor vehicle menaces another with intent. As a result of these offences, Mr Higgs was made subject to a two year Community Correction Order (CCO), which expired on 31 October 2020. An associated Apprehended Violence Order (AVO) was issued against him, which expired on 11 September 2020.

19. On 20 September 2020, that is, while still subject to the CCO, Mr Higgs was also charged with the following offences:

1. common assault, domestic violence related pursuant to s 61 of the Crimes Act 1900 (3 counts);

2. stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (2 counts);

3. intentionally or recklessly destroy/damage property - domestic violence related pursuant to s 195(1)(a) of the Crimes Act 1900; and

4. commit an act of cruelty upon an animal pursuant to s 5(1) of the Prevention of Cruelty to Animals Act 1979.

20. The charges were heard at Dubbo Local Court on 5 November 2020. Mr Higgs pleaded guilty to two charges of common assault, and two counts of stalk/intimidate, on the basis, according to Constable Steele, that the remaining charges were withdrawn. As a result of the guilty pleas, Mr Higgs was made subject to an aggregate Intensive Correction Order for 15 months, which requires him to be supervised by community corrections service, undertake treatment programs and anger management rehabilitation. He was also made subject of two five year AVOs for the protection of his two cousins who were the victims in the assault charges.

21. Mr Higgs wrote in his statement, by way of background to the offences, that he understood his cousins, who were in the care of their 80 year old grandmother had been, amongst other things, stealing from her, bullying her and using drugs in her home; he had acted out of concern for his grandmother’s welfare.

22. Constable Steele wrote that the Applicant was a witness to these recent offences, driving Mr Higgs to various locations where the offences were committed. She was also driving the car when Mr Higgs committed two offences against his cousin, and drove Mr Higgs and his cousin to her residence where the cousin allegedly smoked cannabis. The Applicant said she drove Mr Higgs because he does not have a drivers licence, and he relies on her for transportation. I observe that the Applicant was not charged in relation to her alleged role. I do not accept that these matters weigh against the Applicant personally.

23. The Applicant said Mr Higgs has never asked to look at her firearms and has told her he is not interested in shooting; her hobby of shooting is not an interest shared by Mr Higgs. The Applicant was asked in cross-examination about Mr Higgs’ tattoo of a gun. The Applicant said that Mr Higgs and his younger brother wanted to have matching tattoos and that was what his brother chose.

Confidential information reports and COPS reports

24. The Applicant and Mr Higgs are also the subjects of a number of confidential Information Reports and COPS Reports. Orders were made under s59 of the ADR Act and s64 of the CAT Act in relation to these reports on 7 October 2020.

25. [NOT FOR PUBLICATION]

26. [NOT FOR PUBLICATION]

27. [NOT FOR PUBLICATION]

28. [NOT FOR PUBLICATION]

Way of living or domestic circumstances: sections 11(4)(a) and 24(2)(a) of the Act

29. Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner, and hence the Tribunal on review, has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living and domestic circumstances. This provision is relevant to the decision to refuse the application for a category H firearms licence. Similarly, s 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. This provision, with s 11(4)(a), is relevant to the decision to revoke the Applicant's category AB firearms licence.

30. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43], the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 and New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32, and determined that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant’s domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.

31. The Respondent submitted that the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living and domestic circumstances. This submission, somewhat obliquely, refers to the Respondent’s concerns in relation to Mr Higgs. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. While there was no evidence of any history of domestic violence between the Applicant and Mr Higgs, Mr Higgs has an extensive criminal history, which includes assaults, stalk/intimidation, police pursuits, break and enter aggravated robbery, and at the time the Applicant's firearms licence was revoked and her application refused, he was subject to a CCO. The Applicant contended that at the time the decision was made to revoke her firearms licence, Mr Higgs had not breached any of the conditions of his CCO. In fact, Mr Higgs CCO did not expire until October 2020 and it was on 20 September 2020 that he was charged, and, then on 5 November 2020, convicted of two charges of common assault, and two counts of stalk/intimidate.

32. To put the convictions in context, a number of the offences for which Mr Higgs has been convicted are prescribed offences under the Act and Regulation which would prohibit him from being issued with a firearms licence for a period of 10 years from the date that the convictions were imposed. Additionally, Mr Higgs will also be a prescribed person as a result of being subject to two separate AVOs.

33. The Respondent relied on some conflicting information given by the Applicant in relation to where her firearms are stored. For example, on 2 August 2017, in her application for a Category AB firearms licence, the Applicant provided her home address as the Safekeeping of Firearms (Safekeeping) address. On 20 July 2018, on two Permit to Acquire Forms, the Applicant provided her father’s address, as the Safekeeping address; on 25 November 2018, in her application for a Category H firearms licence, the Applicant provided her home address as the Safekeeping address; on 15 December 2018, on a Permit to Acquire Forms provided her father’s address as the Safekeeping address; and on 15 October 2019, on a Permit to Acquire Forms provided her father’s address as the Safekeeping address. The Respondent’s submission that on an application forms, an applicant is able to identify more than one location for the safe storage of firearms. In fact, an applicant is required to nominate their home address, and the safekeeping address, which may or may not be the same address. On her application for a category AB firearms licence and category H licence, the Applicant identified her safekeeping address as her residential address where Mr Higgs resides. In her evidence the Applicant said her air rifle, which is of sentimental value because it was her late grandfather’s, is stored in her father’s safe and her father, who shoots rarely, has the only key. The premises, her father wrote, have 24 hour surveillance and are fully alarmed. If the Applicant’s account is correct, she has failed, whether intentionally or otherwise, to inform Police where her firearm is stored. I reject the characterisation of her information to Police, in the submissions on her behalf, as “initial discrepancies”.

34. In view of the conflicting information provided by the Applicant, and Mr Higgs's criminal history, I consider there is reasonable cause to believe that Mr Higgs may take advantage of their domestic circumstances and she may not personally exercise continuous and responsible control over her firearm.

The public interest : Sections 11(7) and 24(2)(d) of the Act and clause 20 of the Regulation

35. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

35. The Applicant shoots at ranges at Dubbo and hires guns there. I accept that this is a hobby she enjoys, and that her own firearm – her grandfather’s air rifle, is of sentimental value to her. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

36. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) 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. Although Ward was also a case on the “fit and proper person” test, I observe though that the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

37. The principle in Ward is to the effect that 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

38. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration. I agree with the Respondent’s concerns with respect to the Applicant having access to firearms in circumstances where her partner has convictions for theft, aggravated robbery, stalk/intimidation and assault. Mr Higgs criminal conduct is not limited to "one incident in 2018", as the Applicant contended. It is clear that his criminal conduct extends over a number of years. In view of the Applicant’s conflicting information in her licence applications regarding where she proposes to store her firearms, I cannot be satisfied that they will never be stored at her home which she shares with Mr Higgs, or that despite his professed disinterest in firearms, Mr Higgs may not seek access to her firearms. I do not regard the risk, having regard to Mr Higgs’ history, as “minimal, fanciful or theoretical”.

39. In addition to a conviction for possession of prohibited drugs, there is an extensive history of COPS and intelligence reports concerning the Applicant's connections and relationships with criminal offenders in the Dubbo area. The Applicant has repeatedly come to the attention of Police due to criminal conduct of others. I do not accept that she is only known to Police because of her connection with the family’s pawnbroking business. It was submitted on her behalf that she cannot be held responsible for the actions of others. However, the Applicant was a witness to the most recent offences committed by Mr Higgs in September 2020, by driving him to various locations where the offences were committed. She was also driving the car when Mr Higgs committed two offences against his cousin, and drove Mr Higgs and his cousin to her residence where the cousin allegedly smoked cannabis.

40. The Applicant has a history of traffic infringements, but I do not necessarily consider it to be “extensive” as the Respondent submitted. Again, many of her offences predated the issue of her licence and hence, should have been known to Police. Having said that though, I observe that her driver’s licence was subject to two suspensions for failing to pay a fine, and one three-month suspension for excessive speed. In considering all the Applicant's circumstance, her repeated breach of traffic laws and regulations (which are aimed at ensuring public safety – see Tannous v Commissioner of Police [2011] NSWAT 116) indicates a disregard for a regulatory scheme aimed at ensuring public safety: see Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill at [81].

41. The Applicant's domestic circumstances, especially in view of her partner’s criminal history, her own criminal history, and, to a lesser extent, her lengthy traffic infringement record, cannot result in a conclusion that there is virtually no risk to public safety. Consequently, it is not in the public interest for the Applicant to continue to hold a category AB firearms licence or be issued with a category H firearms licence.

42. [NOT FOR PUBLICATION]

Conclusion

44. For the reasons given above, the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence and to refuse the Applicant's application for a Category H firearms licence.

Decision

1. The decision under review is affirmed.

**********

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

Registrar