Salter v Commissioner of Police

[2021] NSWCATAD 37

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Salter v Commissioner of Police [2021] NSWCATAD 37

Hearing dates:

11 November 2020

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The reviewable decision is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms – Firearms Prohibition Order – criminal antecedents – acquittal – criminal conduct – criminal associates – confidential material – non-disclosure orders – public interest – “not fit, in the public interest”

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Customs Act 1901 (Cth)

Drug Misuse and Trafficking Act 1985

Firearms Act 1996

Poisons and Therapeutic Goods Act 1966

Cases Cited:

Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99

Bellamy v Bellamy [2018] NSWSC 534

Browne v Dunn (1893) 6 R 67 (HL)

Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

Grant v Commissioner of Police [2020] NSWCATAD 158

Hamid v Commissioner of Police, NSW Police Force [2018] NSWCATAD 43

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCAT 31

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

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

Texts Cited:

New South Wales Ombudsman (2015) ‘Review of Police Use of Firearms Prohibition Order Search Powers: Issues Paper, Section 74A of the Firearms Act 1996’

New South Wales Ombudsman (2016a) ‘Review of Police Use of the Firearms Prohibition Order Search Powers: Section 74A of the Firearms Act 1996’. McElhone, Megan --- "Now They're Extraordinary Powers': Firearms Prohibition Orders and Warrantless Search Powers in New South Wales" [2017] CICrimJust 5; (2017) 28(3) Current Issues in Criminal Justice 329

Category:

Principal judgment

Parties:

Daniel Graham Salter (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
G Jones (Applicant)
H El-Hage (Respondent)

Solicitors:
Bowles Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00143662

Publication restriction:

The confidential material and any information therein is not to be disclosed to the applicant or his legal representatives (in accordance with s64(1)(d) of the Civil and Administrative Tribunal Act) and is not to be published (including in the Tribunal’s reasons for decision) (s64(1)(c) of the Civil and Administrative Tribunal Act.)

reasons for decision

Background

1. On 12 January 2017 Daniel Graham Salter (‘the Applicant’) was arrested in the course of an Australian Federal Police (AFP) investigation into the illegal supply of firearms. He was charged with 2 counts of the offence ‘Attempt to acquire firearm no licence or permit – prohibited firearm’ contrary to section 50(a) of the Firearms Act 1996 (NSW) (‘the Act’) by virtue of section 51CA of the Act (‘the Firearms Charges’) and 2 counts of the offence of ‘Intentionally import prohibited tier 2 goods, namely a firearm’ contrary to s 233BAB(5) of the Customs Act 1901 (Cth) (‘the Import Charges’). Some hours later, on 13 January 2017 search warrants were conducted at the Applicant’s residence and he was subsequently charged with 1 count of ‘possess/attempt to, prescribed restricted substance’ contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) and 10 counts of ‘possess prohibited drug’ contrary to s10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (‘the Steroid and Drug Charges’).

2. On 24 March 2017, the Import Charges were withdrawn. The Applicant pleaded guilty to the Steroid and Drug Charges and on 28 February 2018 he was convicted of those offences, with no other penalties imposed under s10A of the Crimes (Sentencing Procedure) Act 1999 (‘the 2018 convictions’). The Applicant pleaded Not Guilty to the Firearms Charges, which were dismissed after a hearing on 7 and 28 February 2018 in Parramatta Local Court.

3. On 17 June 2019 the Commissioner of Police (‘Respondent’) issued a Firearms Prohibition Order (‘FPO’) against the Applicant pursuant to section 73(1) of the Act. The Applicant sought an internal review of the FPO which was affirmed on 17 April 2020. The Applicant then sought review in this Tribunal on 13 May 2020.

4. The FPO was imposed on the basis that the Applicant is not fit, in the public interest, to have access to firearms, firearm parts or ammunition. The reasons why the Respondent considers the Applicant unfit to have such access rely on the Applicant’s 2018 convictions for the Steroid and Drug Charges, the Firearms Charges, as well as sensitive police and AFP records regarding the Applicant’s association with known criminals, members of an outlaw motorcycle gang (OMCG), and the illegal supply of firearms.

5. A significant proportion of the Respondent’s evidence and submissions was subject to confidentiality orders which were made pursuant to ss 49 and 64 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) following an interlocutory hearing on 29 July 2020 (‘the Confidential Material’). Those orders were:

1. Pursuant to s49 of the CAT Act part of the hearings on 29 July 2020 and 11 November 2020 will be conducted in the absence of the Applicant and the legal representative for the applicant (the confidential hearings).

2. Pursuant to s59 of the Administrative Decisions Review Act 1997 (ADR Act) the Respondent is not required to lodge copies of the documents (confidential documents) described in the confidential affidavit provided to the Tribunal.

3. Pursuant to s64(1)(c) of the CAT Act, the publication of any evidence or submissions given during the confidential hearings, confidential documents and the confidential affidavit, and matters contained in the confidential documents and confidential affidavit, is prohibited.

4. Pursuant to s64(1)(d) of the CAT Act, the disclosure of any evidence or submissions given during the confidential hearings, confidential documents and the confidential affidavit, and matters contained in the confidential documents and confidential affidavit, is restricted to the Commissioner (Respondent), the legal representatives for the Commissioner and the Tribunal.

5. Pursuant to ss64(1)(b) and (c) of the CAT Act, the publication and reporting of any evidence or submissions given during the confidential hearings, confidential documents and the confidential affidavit, and matters contained in the confidential documents and confidential affidavit, is prohibited.

6. The effect of those orders was that the Applicant and his legal representatives were not present to hear certain evidence and submissions relevant to the Tribunal’s determination at hearing, which also cannot be published in these reasons.

Legal Principles

7. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms.

8. Section 75(1)(f) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.

9. Section 3 of the Act states (emphasis added):

(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 as follows:

…

(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 supply of firearms,

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

…

10. The power to grant an application for a firearms licence under s 11 of the Act is “tightly constrained”: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1].

FPOs

11. Section 73 confers the Respondent with the power to issue a FPO:

(1)   The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm.

(2)   A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made.

(3)   The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.

12. The effects of a FPO and the powers given to Police as set out in s 74A(2) of the Act are significant. These effects include authorisation for Police to detain a person who is subject to a FPO, to enter their premises and to stop and detain their vehicle and conduct a search for any firearms, firearm parts or ammunition, without the need for Police to obtain a valid search warrant. They have been “described as ‘suspicionless’ search powers as they do not require the police to first have a reasonable suspicion that an individual has committed, or is about to commit, an offence” [1] .

    1. McElhone, Megan --- "Now They're Extraordinary Powers': Firearms Prohibition Orders and Warrantless Search Powers in New South Wales" [2017] CICrimJust 5; (2017) 28(3) Current Issues in Criminal Justice 329

13. Section 74 of the Act provides for heavy penalties, including gaol time, for those subject to FPOs. FPOs have no time limitations and there is no express statutory obligation on the Respondent to review whether they remain appropriate or necessary. Section 74A provides:

(1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).

(2)   A police officer may:

(a)   detain a person who is subject to a firearms prohibition order, or

(b)   enter any premises occupied by or under the control or management of such a person, or

(c)   stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person,

and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.

(3)   In this section,

"premises" includes any place, whether built on or not.

14. The powers given to the Respondent by enactment of s74A of the Act in 2013 were expressly subjected to review by the Ombudsman pursuant to s 74B of the Act, the results of which were published: New South Wales Ombudsman (2015) ‘Review of Police Use of Firearms Prohibition Order Search Powers: Issues Paper, Section 74A of the Firearms Act 1996’ and New South Wales Ombudsman (2016a) ‘Review of Police Use of the Firearms Prohibition Order Search Powers: Section 74A of the Firearms Act 1996’. The powers clearly have potential for misuse and abuse [2] :

Between 1 November 2013 and 31 October 2015, 1317 people in NSW were served with a FPO (NSW Ombudsman 2016a:5). Meanwhile, in the first 22 months of the Ombudsman’s review period, police used FPO search powers to conduct 2571 searches of 634 people, 227 of whom were not subject to a FPO. These searches could be grouped into 1343 separate interactions, which were termed ‘search events’ by the police and the Ombudsman. More than half of these search events took place in Sydney’s south-west (NSW Ombudsman 2016a:6). Despite conducting more than 2500 searches using their FPO search powers in the two-year review period, police seized 35 firearms, nine firearm parts, and 26 lots of ammunition — meaning that police found a firearm, part of a firearm or ammunition in just two per cent of all FPO searches (NSW Ombudsman 2016a:113).

2. Ibid

15. The public interest is a key consideration for the exercise of the power conferred under s 73 of the Act. As noted by the Tribunal in Hamid v Commissioner of Police, NSW Police Force [2018] NSWCATAD 43 at [53], the language used in s 73 of “not fit, in the public interest” is different to the “fit and proper person” test referred to in the Act’s licensing provisions and in the context of the strict licensing and regulatory system for the possession and use of firearms and associated parts, involves “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

16. The Appeal Panel in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] found that the term ‘public interest’ included matters beyond the character of the Applicant and included public protection, public safety, and public confidence in the administration of the licensing system. An individual’s association with OMCG or other persons with significant criminal history has been held by this Tribunal to demonstrate a risk to public safety and the public interest. As stated in Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [19] to [21]:

As set out in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, the concept of public interest allows for matters going beyond the applicant’s character to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration

I agree with the following discussion of the public interest in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 at [31] that ‘given the breadth of the Commissioner’s 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”:

In both Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79, it was held that where an applicant voluntarily associated with persons having significant criminal histories or involvement with criminal organisations and activities, that association may create the danger to public safety with which the Commissioner is concerned and that person may therefore be not fit, in the public interest, to be in possession of a firearm. In those circumstances, a firearms prohibition order may be justified.

17. The Tribunal is also entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCAT 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

Evidence and Submissions

18. The Respondent relied on the section 58 documents, transcript of the Applicant’s criminal proceedings in Parramatta Local Court, the AFP Statement of Facts, and the Confidential Material. The Applicant provided an affidavit dated 2 December 2020 and was cross examined at hearing.

19. [NOT FOR PUBLICATION]

20. The Respondent submitted that the issue of whether the Applicant was “not fit, in the public interest” to have possession of a firearm turned on public interest considerations, and that it is in the public interest for the FPO to be issued against the Applicant. In support of that submission, the Respondent relied on the Firearms Charges, the 2018 convictions, and the Confidential Material.

21. The Applicant submitted that prior to his arrest in January 2017 he had an “impeccable character” and would have been a fit and proper person to hold a firearms licence. He had served in the New Zealand military with honour and ran a lawful business. He had never applied for a firearms licence. The Applicant submitted that the bases on which the Respondent relied to support the FPO could not be maintained on the evidence, because:

1. The Importation Charges had been withdrawn in May 2017. At hearing before Magistrate Giles in the Parramatta Local Court, the AFP officer in charge had accepted as correct that “You don’t assert in any way, form or manner that Mr Daniel Salter is involved in the importation”;

2. The Applicant was not associated with OMCG. He gave sworn evidence in his affidavit that “I am not a member of any outlaw motorcycle gang or any other gang… I do not associate with any known criminals”;

3. The Applicant’s convictions for Steroid and Drug Charges related to bodybuilding substances and had nothing to do with firearms possession;

4. The Applicant was acquitted on the Firearms Charges. Magistrate Giles had found that “the only real evidence of attempting to acquire the pistols is the Wickr quote, “I will pay for em” texted by ‘greenberet310’”, in circumstances where “em” could refer to the guns or it could refer to the Uber which had been referred to in immediately preceding texts, and “whilst in all probability ‘greenberet310’ may well be Daniel Salter and there are clouds of suspicion that settle on him circumstantially the prosecution cannot exclude Duncan Salter as possibly being ‘greenberet310’”.

22. The Applicant also submitted that searches conducted by the Respondent on 13 January 2017, 9 March 2017 and 25 June 2019 had not produced any firearms or firearms parts. Whilst an FPO provided unfettered access to its subject, the Applicant submitted that pursuant to s74A exercise of the powers under an FPO had to be for a reason, and there was no reason identifiable between 17 June 2019 when the FPO was served, and today. The Applicant submitted that the Tribunal was tasked with determining whether the FPO was appropriate today, not whether it was appropriate as at 13 January 2017 when the Applicant was charged, or at 17 June 2019 when the FPO was served.

The Firearms Charges

23. The Applicant did not call any evidence at the time that the Firearms Charges came before the Local Court. The following factual scenario as summarised by the Respondent was not disputed:

1. AFP arranged a covert operation whereby officers would act as firearms sellers. A police officer acting as a gun seller agreed to sell 2 glock pistols to a Mr Noema;

2. On 11 January 2017 Mr Noema flew to Sydney to buy the pistols from the gun seller. The Applicant and his brother, Duncan Salter, picked up Mr Noema from Sydney Airport and drove him to the Quest Apartments at North Ryde;

3. The Applicant provided his drivers licence to Quest Apartments for use as ID for the room, which had been booked for Mr Noema by the Applicant’s girlfriend;

4. The Applicant and Mr Noema went up to Mr Noema’s room after check-in was finalised, and the Applicant left shortly after.

5. Mr Noema was arrested on 12 January 2017 and police officers assume his handle on Wickr, an encrypted messaging service on his phone. Police thereby communicate with a person identified as ‘Greenberet310’. Arrangements are made to meet with ‘Greenberet310’ at the underground carpark of an Aldi store at Gladesville to hand over firearms. The discussion involves references to the Aldi near “Gladesville Maccas” and taking Ubers. During the conversation, Greenberet310 asked “U got em?” and then states “I will pay for em”;

6. A white 4WD registered to the Applicant arrived at the Aldi carpark at the prearranged time. It was the same car used by the Applicant to pick Mr Noema up the previous day. The Applicant and his brother were in the car and were both arrested.

24. For the reasons referred to above at 20(4) the Applicant was acquitted of the Firearms Charges but this does not prevent the Tribunal examining the conduct which led to the charges. The Applicant did not address the Firearms Charges in his affidavit but was questioned on those matters at hearing. In cross examination the Applicant claimed that he had acted on the instructions of his brother Duncan, who had told him on the morning of 11 January 2017 to “pick up a friend flying into Sydney Airport”. He claimed to have not known his name and wasn’t told anything else by his brother, but “he would have let me know when he was landing or instructed me when he was arriving”. He initially stated that he was informed by Mr Noema on the drive over that he had booked accommodation at the Quest Apartments in Ryde, but later stated that he had overheard Mr Noema telling this to his brother. He couldn’t recall what he and his brother discussed on the drive. He said that Mr Noema “instructed me that he had no ID or wallet and so I had to go get my wallet” while his brother waited in the car.

25. The Applicant explained “I got out to help him get checked in. I don’t think he had been to Sydney before”, but couldn’t remember if Mr Noema had told him that. He wasn’t too sure if Mr Noema and his brother were friends. He stated that his brother was homeless and he had hardly spoken to him for 3 years, and had not spoken to him about Mr Noema.

26. The Applicant called his girlfriend from the Quest Apartments reception and asked her to pay for Mr Noema’s accommodation. He couldn’t remember whether he did so from the reception desk phone or from his mobile. He claims that he didn’t tell her how long to book Mr Noema in for and that “she spoke to the reception lady”. Initially he claimed to have then left the hotel while Mr Noema was in the foyer, but under questioning agreed that he had gone up to Mr Noema’s room with him, claiming that this was because he needed to swipe him into the room. He claimed to not have had any conversation with Mr Noema after the room was booked and before he left the hotel, he didn’t ask Mr Noema how long he was staying, and he had no further contact with Mr Noema. He was not sure whether his brother had any further contact with Mr Noema.

27. He was arrested the following day at the Aldi store carpark at Gladesville, which was a 7-10 minute walk from his residence. He had been to the Aldi store a couple of times before, but claims not to have gone to the Aldi store via Victoria Road, was not sure whether there was a McDonalds near the Aldi store, and claimed that he was not sure whether there was a McDonalds on Victoria Road, Gladesville. He said the Police searched his car “when I was in the watchhouse”. He claimed the 4 mobile phones located in the car were not his, and explained that the $4000 cash found in his wallet was a monthly withdrawal he made “to pay for a race car at Eastern Creek”.

28. The Applicant did not accept that he was meeting with Mr Noema at Aldi on the day of his arrest. He did not accept that he had contacted Mr Noema on various occasions on the day of his arrest, that he had contacted him via Wickr, or that he had some communications with Mr Noema prior to 11 January 2017.

29. In re-examination the Applicant clarified that Mr Noema was known to his brother, Duncan, but claimed that he had been estranged from Duncan for years. He claimed that Duncan had been deported back to New Zealand and he had ceased all contact with him. The Applicant said that he had helped Mr Noema with paying for his hotel room and providing his own ID for the booking because of his charitable nature.

30. I found the Applicant’s evidence to be dubious. He gave multiple answers to questions such as how he knew to drive to the Quest Apartments, and was evasive when questioned directly on simple matters which were clearly within his knowledge, especially after vague or contradictory evidence given by him. For example, his responses to questions about the McDonalds on Victoria Rd near the location of the Aldi store were deliberately evasive and clearly designed to distance himself from the discussions between ‘Greenberet310’ and Mr Noema arranging to meet to hand over the 2 firearms. His explanations for why he provided his ID to a supposed stranger, how Mr Noema’s room was booked and why he went up to Mr Noema’s room are highly unlikely in the absence of any discussions about Mr Noema’s length of stay or repayment, and do not make sense in the context of him not previously knowing or communicating with Mr Noema. His explanations also do not make sense in the context of him claiming to be estranged from his brother Duncan.

31. The Applicant was clearly cross examined regarding his relationship with Mr Noema and his brother, Duncan Salter. Despite the Applicant’s statements that he did not communicate with or know Mr Noema, and that he was estranged from his brother Duncan, I consider this unlikely on the balance of probabilities when considering his actions on 11 and 12 January 2017. In addition to the facts discussed above, the prosecution evidence in the criminal proceedings (which was not disputed) included evidence from the hotel staff that the Applicant spent 5 to 6 hours with Mr Noema after checking him into the Quest Apartments. Irrespective of whether the Applicant did, in fact, spend any time with Mr Noema at his hotel room contrary to his evidence in these proceedings, his willingness to pick him up from the airport with his brother, to book and pay for accommodation for him through his girlfriend, to provide his ID for check-in, and to assist him in getting into his hotel room supports the Tribunal finding that Mr Noema was known to the Applicant prior to 11 January 2017.

32. The evidence demonstrates that either the Applicant or Duncan Salter was communicating with Mr Noema to arrange for the purchase of firearms. Despite the Applicant’s acquittal, the evidence demonstrates to this Tribunal on the balance of probabilities that, even if he wasn’t ‘greenberet310’ and even if ‘em’ referred to in the messages from ‘greenberet310’ was referring to an Uber instead of firearms, the Applicant was involved in the transaction by driving his brother and Mr Noema from the airport, arranging and paying for Mr Noema’s accommodation, and driving his brother to meet Mr Noema at the Aldi car park to obtain the firearms. If he wasn’t personally acquiring the firearms, he was facilitating their acquisition by or with Duncan. Either way, he is involved in criminal conduct relating to illegal acquisition of firearms, which is seriously concerning. I afford this consideration significant weight in my determination.

The 2018 Convictions

33. Shortly after the Applicant was arrested on the Firearms Charges, the police conducted a search of his premises and found testosterone and other prohibited substances, which resulted in the Steroid and Drug Charges. The Applicant pleaded guilty to those offences and was convicted. I agree with the Respondent’s submission that those matters suggest the Applicant was willing to act in breach of the law to obtain prohibited substances, which is relevant to the public interest issues which arise. However I also agree with the Applicant’s submissions that the Steroid and Drug Charges alone would not be sufficient to justify the issue of a FPO against the Applicant, and therefore afford this consideration limited weight in my determination.

The Confidential Material

34. In a private and confidential hearing conducted under s49(2) and s64(1)(d) of the CAT Act the Respondent provided additional evidence and submissions which were restricted from disclosure to the Applicant and the general public.

35. [NOT FOR PUBLICATION]

36. [NOT FOR PUBLICATION]

37. [NOT FOR PUBLICATION]

38. I afford the Confidential Material significant weight.

Association with criminals / OMCG

39. The Applicant’s representative submitted that the Tribunal could not find that the Applicant had involvement with criminals or OMCG because he had not been challenged or cross examined on his statement that he had no such associations or dealings. Such a finding was submitted to be a denial of procedural fairness.

40. The rule in Browne v Dunn (1893) 6 R 67 (HL) (‘Browne v Dunn’) is that a party wishing to present evidence which is inconsistent with the evidence given by a witness for the opposing party must give that witness an opportunity during cross-examination to comment on the contradictory evidence. Although the Tribunal is not bound by the rules of evidence, the Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It “may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: CAT Act, s 38(2). However the Tribunal has made orders prohibiting disclosure of the Confidential Material. Section 64(1)(d) provides an express exception to the ordinary rules of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant) at [24]. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d):

“Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.”

41. On the basis that the inconsistent evidence was included in the Confidential Material, the rule in Browne v Dunn therefore doesn’t apply to the Respondent’s cross examination of the AppIicant and it is open to the Tribunal to make findings in the absence of such evidence being put to the Applicant.

42. There was sufficient evidence provided to the Tribunal in the confidential hearing to support the finding that the Applicant was associating and continued to associate with “known criminals”, and I afford that consideration reasonable weight.

43. [NOT FOR PUBLICATION]

Conclusion

44. The Applicant submitted that the “clouds of suspicion” referred to by Magistrate Giles in the criminal proceedings for the Firearms Charges had been “tempered by events before and after” and had thereby been “moderated” to such an extent that there was no basis now for the FPO. The events referred to were searches conducted of the Applicant’s residence, business premises, and partner’s residence on 12 January 2017 and of his car on 9 March 2017 which had not yielded any firearms, and that despite unfettered access to search the Applicant since the imposition of the FPO, there was “nothing”.

45. In determining the appropriateness of the FPO under review, it is acknowledged that there are serious impositions placed upon any person subject to such an Order. However the public interest in maintaining public protection, public safety, and public confidence in the administration of the licensing system is paramount. The Applicant’s conduct in relation to the Firearms Charges, irrespective of his acquittal, is of a serious enough concern to justify the imposition of an FPO. The Confidential Material demonstrates that those concerns about the Applicant’s character, conduct and associations are realistic and ongoing. On the evidence available to me I therefore agree that the Applicant was and continues to be not fit, in the public interest, within the meaning of s 73 of the Act to have access to firearms, firearm parts or ammunition. I also consider that it is in the public interest for the Applicant to be subject to the FPO so that the Respondent may exercise its powers under s 74A of the Act to conduct searches of the Applicant for firearms, firearm parts and ammunition.

Order

1. The reviewable decision is affirmed.

**********

Endnotes

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: 25 February 2021