Self v Commissioner of Police

[2022] NSWCATAD 172

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Self v Commissioner of Police [2022] NSWCATAD 172

Hearing dates:

4 May 2022

Date of orders:

26 May 2022

Decision date:

26 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

The decision of the Respondent to refuse the Applicant’s application for a firearms licence is set aside.

Catchwords:

LICENSING – firearms – fit and proper person – conduct over 10 years ago - 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; (1990) 170 CLR 321
Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254
Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Joseph v Commissioner of Police, New South Wales Police Force [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
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
Sawires v the Commissioner of Police [2010] NSWADT 4

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force 

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

Category:

Principal judgment

Parties:

Philip Self (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/00335473

Publication restriction:

nil

REASONS FOR DECISION

1. On 22 November 2020 the Applicant, Philip Self applied for a Category B firearms licence. On 11 October 2021 the Respondent decided to refuse the application, on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to hold such a licence. On 2 November 2021 an internal review application was lodged on the Applicant’s behalf, but, as he was not notified of the outcome of the internal review decision within 21 days, the internal review was taken to be finalised: s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). 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:

...

(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

...

...

(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 an undated statement. He gave evidence and was cross examined. The Applicant was unrepresented at the hearing, but submissions provided before the hearing were with the assistance of a solicitor.

5. Prior to the hearing the Applicant provided references from:

1. His sister-in-law, Joanne Self dated 10 February 2022

2. Jannette Graham

3. David Woolett

4. James Kellas dated 20 January 2022

5. Nathan Anderson

6. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.

7. After the hearing, both the Applicant and the Respondent’s representative provided written submissions.

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

Applicant’s licence history

9. The Applicant held a minor’s firearms permit between 1993 and 1997. Between May 2003 and July 2008 he held a Category AB licence, but renewal was not granted when it expired. The Applicant applied for a licence again in 2013 but his application was refused.

On what basis was the Applicant’s most recent licence application refused?

10. In the decision under review and before me the Respondent submitted that the Applicant was not a fit and proper person to hold a firearms licence nor is it in the public interest that he do so.

11. The Respondent relied on a number of incidents between 1999 and 2010 in which the Applicant had adversely come to Police attention, and I have referred below to the information provided in the s 58 documents in relation to each incident.

12. In addition, the Applicant had 2 PCA offences at ages 20 and 23 – one high-range (1999) and one mid-range (2002).

February 1999

13. About 1.15am on 18 February 1999 the Applicant, then aged 19, had been drinking heavily, and left a hotel in North Sydney and, with two other men, walked to a shop on the Pacific Highway. There, one of the other men, kicked out 2 garden lights from their mountings and the other man, kicked out one garden light. It was reported that the Applicant went to his vehicle and collected a club lock and then smashed a 3 x 3 metre shopfront window. When the Applicant and the two others were disturbed by a member of the public, they drove away in the Applicant’s vehicle. After about 100 metres the Applicant drove into the rear of a parked car, which in turn, damaged 2 other cars. The Applicant’s head was lacerated and he was taken to hospital where a blood sample was taken that resulted in a reading of 0.168.

14. The Applicant was interviewed by Police and reportedly admitted damaging the property. He also reportedly told Police:

In the past when I’ve gone out drinking socially with friends I have on occasions had to(o) much to drink at the time. Rather than just having a few social drinks I have got blind drunk. This incident has made a big point in not going out and drinking in excess to the point where I do stupid things.

15. Before me the Applicant said he could not remember telling Police that he had been “blind drunk”. He said that one of the others was “yahooing”, but he did not know who smashed the window, although he admitted that he was present when it was smashed. He denied that a club lock had been involved and that it was possibly an empty beer bottle. He said they were all to blame – they were “being clowns”.

16. The Applicant was charged with negligent driving and damage property. According to his record, the Applicant was fined $200 and ordered to pay costs, although he said in his evidence that he thought the charge was dropped.

March 1999

17. On 11 March 1999, at 1.55am Police attended a dispute at the Northpoint Tavern where the Applicant was involved in an altercation with a security guard after he was refused re-entry. The Applicant and the security guard versions in the Event were inconsistent, and as no witnesses came forward, no further action was taken. Nothing is recorded in the Applicant’s criminal history.

18. The Applicant’s evidence before me was that the security guard approached him outside the Tavern, and verbally abused him while the Applicant may have been “pleading his case”. He said the security guard then punched him for no apparent reason. The Applicant attended the Police station and reported being assaulted. It is unknown if any action was taken by Police.

19. The Applicant said that it was not until he saw the s 58 documents that he was reminded of the incident.

December 2001

20. On 22 December 2001, the Applicant was drinking with some friends at the Greenwood Hotel at North Sydney. At about 12.30am the Applicant reportedly threw a glass at a perspex window causing the glass to smash. The Applicant was asked to leave by the manager and was escorted out by a security guard. The Applicant was involved in a fight with security guards and the Police were called. It was reported that the Applicant had not left when asked by the manager and left only when the security officer attended. The Applicant was observed to swear at the security guard before he was escorted from the premises. As he was leaving, he reportedly kicked the security guard. The Applicant attempted to re-enter the premises and there was then a scuffle. The Police were called and when they arrived, they observed the Applicant fighting with security guards. The incident resulted in the Police spraying those involved, including the Applicant, with OC spray in order to subdue them. The Applicant was charged with Common assault and Destroy or damage property but these were dismissed with no prima facie case being found. The Applicant said that the charge against him was dismissed because the security guards admitted in their evidence that they had kicked the Applicant rather than vice versa.

21. Notwithstanding the court’s dismissal of the charges against the Applicant, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences dismissed: Joseph  v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.

22. In his evidence before me the Applicant agreed that he had been asked to leave the premises. He said that one of his friends had an altercation with a security guard who knocked him out. He conceded he may have used abusive language to the security guard but denied that he was fighting with him. In his evidence before me, the Applicant, while admitting damaging the glass, denied “throwing” it - there had been an “underarm toss” into the garden bed where people would leave their empties.

23. He said when the Police arrived they had just rounded everybody up, because the venue was very busy. He denied being sprayed by the Police but had received treatment from the ambulance to decontaminate himself from the OC spray that had drifted onto him.

24. The evidence in relation to the incident is equivocal. There is no doubt though that the Applicant was present when there was an altercation with security guards, that he used abusive language, and that he was well-affected by alcohol.

July 2008

25. There was no dispute that, on 20 July 2008 the Applicant and others were asked to leave the Crows Nest Hotel at about 2.00am as it was closing. The Applicant and another man went to the side of the hotel and climbed onto rubbish bins to re-enter the hotel. In his evidence the Applicant agreed it was a stupid thing to have done.

26. Security guards observed the Applicant at the bar trying to be obtain a drink, he having had entered the hotel via the beer garden. The Applicant reportedly swore at the security guards that approached him, threatening legal action if he was removed. In his evidence the Applicant denied that he had used the language attributed to him but said he may have done so after he had been removed. He said he was taken aback at the forcefulness of his removal, which he considered was excessive.

27. When the Applicant was removed from the hotel the security guards followed him and the other man to ensure that they did not attempt to re-enter the hotel. Before me, the Applicant said he was chased for two blocks by the security guard and was bashed. In his evidence and in his submissions the Applicant described himself as the victim in the incident, having been chased by the security guards for no real reason after he left the hotel. According to the security guard, the Applicant charged at him and attempted to remove his security identity card, although the Applicant, in his evidence denied this. The Applicant then allegedly struck the security guard’s face with his right hand and the photographs of the security guard show a bloodied left eye. The Applicant denied this and said in fact he was the victim and he had called 000, but, as the security guard took the phone from him, the call was later found to be inaudible. He said that the guard weighed about 120 kgs whereas he weighed less than 80 kgs. He said that he was dragged back to the venue and was held face down until Police arrived. The Applicant was reportedly “thrashing about” because, he said, the security guard was leaning on his back. When Police attended the venue the Applicant reportedly refused to stand and resisted arrest, but said he was agitated at the time. Details of the Applicant’s conduct after the Police arrived were set out in the statements of Constables Johnson, Dean and Collins, which formed part of the s 58 documents.

28. At the police station the Applicant was reportedly behaving in an irrational, offensive and threatening manner towards the Police. He thought he was concussed from having been bashed, which could have explained his behaviour at the Police station. He was also said to have smeared blood around the cell in which he was held, but he said it was the result of him bleeding from being assaulted.

29. When Police located his firearms licence in his wallet and he was asked what he used firearms for, he allegedly said, “to shoot people with, what else?”. The Applicant’s version of that conversation was that one of the officers had said: “you have firearms so you can shoot people?” to which the Applicant had replied “yeah, right”. He said it was a silly comment to have made. The Applicant claimed in his evidence that the Police officers were “taunting” him and a senior officer “gave them a talking to” and arranged medical attention for the Applicant. The next day he went to hospital where stitches were applied, which are still visible. He had a red eye, he said, for about a year.

30. In his evidence the Applicant said the Police never took a full statement from him, although full statements were taken from the security staff. The Applicant said he protested his innocence at the Police station, but there was nothing recorded by Police to that effect. He regrets not having engaged the services of a lawyer earlier.

31. The Applicant was charged with Assault occasioning actual bodily harm with respect to the security guard. He defended the charge but was found guilty, including on appeal to the District Court. He was fined $2000 and placed on a good behaviour bond. In addition, he was charged with Destroy or damage property (in relation to the damage to the cell) and Excluded person re-enter/attempt to re-enter premises but these charges were dismissed.

June 2010

32. On 17 June 2010, a complaint was made to Police by the manager of Queanbeyan McDonald’s. The complaint was to the effect that at 1.20am the Applicant had been walking through the drive-thru (only) area and, when the manager approached him, he reportedly became “belligerent and aggressive”. When the Applicant was spoken to by Police his response was described as aggressive and non-compliant; he was considered to be intoxicated. The Applicant would not provide the Police his name and address and he was placed in the Police truck until he did so. No charges were laid as a result of the incident.

33. The Applicant’s version of events is that he and his colleagues were progressing driving through the drive-thru when they were asked to get out of the vehicle. He said the Police must have been called because there were other people misbehaving. He was accused by Police of walking through the drive-thru and littering. He said they had not even ordered so could not have disposed of rubbish. He said he was aghast to have been accused of littering, which he abhors. He denied being aggressive but said he was “agitated”.

34. Once again, it is the Applicant’s conduct which is relevant: per Joseph. I observe that no charges arose out of the incident, although the Applicant was issued with an “official move along” direction. There was no clear evidence about what precisely had occurred at the drive-thru. The Event records that the Applicant was argumentative and belligerent, or according to the Applicant, was “agitated”. He was well affected by alcohol.

Behaviour since 2010

35. The Applicant has not come to Police attention since 2010 except for three speeding infringements reported in 2015 and 2018.

36. It was submitted on the Applicant’s behalf that, following his District Court appearance in 2010 he had undertaken a considerable amount of soul-searching and an acknowledgement that his past behaviour had been the product of intoxication and immaturity.

37. The Applicant has been employed in the same industry for 20 years – and is a Project Team Manager with a team of 35. He is now 42 years old, has been married for 11 years, and has 2 children.

38. The Applicant said it was upsetting to read all the s 58 material relating to his conduct in his earlier years. He would be embarrassed if his children were to learn of his past; he is, he said, deeply ashamed of his conduct. It was submitted that he is a different man – now a financially stable family man who owns his own home, is a manager who mentors colleagues, and is a pillar of the community.

35. For over 30 years the Applicant’s family owned a farm which produced super fine merino wool and, as a young person, he would shoot there with his father and brother. The farm was sold in 2017. Currently both his parents and previously, his wife, have all held firearms licences. He and his wife are presently seeking to purchase a property in the Gloucester area as a hobby farm. He wrote of the need to have a licence as a landowner in order to undertake normal farm duties. He would like to be able to join family and friends in the sport.

36. His 85 year old father owns several collectible firearms of considerable family sentimental significance. The Applicant is concerned that the heirlooms may not be able to stay in the family when his father dies.

Is the Applicant a fit and proper person to hold a firearms licence?

41. Section 11(3) of the Act requires that the Tribunal be 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.

42. 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].

43. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he “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.

44. The Applicant in his evidence submitted that he is embarrassed by reading the materials in the s 58 bundle and that he would not want his children to read the bundle. The Applicant submitted that the conduct took place largely when he was in his 20s and he is now in his 40s he has now grown up. The 2008 incident was the turning point and he realised that he had too much to live for. The Applicant said that he has too much to lose to act as he had in the past.

45. The Applicant in his evidence and in his statement said that his conduct in 2008 was out of character and caused by his concussion. As the Respondent submitted, a review of all of the material however tends to suggest that the conduct of the Applicant was not out of character but rather, was consistent with his conduct whilst intoxicated at that period of his life. That, however, was now, 12 years ago, and much has changed in the Applicant’s life since that time, as is discussed below.

46. The Respondent particularly relied on the 2008 conduct. Both the Local Court and the District Court found the Applicant guilty of Assault occasioning actual bodily harm. It was submitted that his version of the incident, namely that he was chased and assaulted by the security guards was not accepted. In the absence of a transcript of the judgement, however, the conclusion can only be that the Applicant’s version of the incident vis-à-vis the alleged assault of the guard was not considered sufficient to raise a reasonable doubt. Having said that, it is clear that the security guard was injured in an altercation with the Applicant.

47. The Respondent submitted that if the Applicant was in fact the victim in the 2008 incident, he might have been expected to have raised this with the Police at the scene or at the Police station or at least make some comment that it was he that had been assaulted, rather than, as was reported, acting in the aggressive violent offensive manner. Again, in the absence of the transcript, it is difficult to come to a view about this. The Applicant’s account was that he was always of the view that he had been assaulted; he attempted to phone 000; he was certainly injured and required treatment. He told Mr Anderson the next day that he had been assaulted. He has been consistent in his account. It is clear though, that both the Applicant and the security guard were injured in the incident.

48. The Respondent contended that the Tribunal should not be satisfied 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 and submitted, in particular, that the Applicant’s conduct in the reported Events, paints a picture of a person who, after having consumed alcohol, is violent and aggressive, who refuses to acknowledge or comply with Police instructions and, in that state, presents a risk to public safety. It was submitted that he undertakes risky behaviour such as driving whilst drunk, damaging property of others and assaulting security guards in the course of their duty. I observe that the submissions are couched in the present tense, whereas, at best, the evidence demonstrates no adverse conduct (other than 2 speeding offences) since, at the latest, 2010.

49. I observe that most of the conduct on which the Respondent relied occurred when the Applicant was a teenager or a young adult, and is now, in some cases, over 20 years ago. The Applicant conceded in his evidence that he was immature when the incidents occurred. Between May 2003 and July 2008 when the Applicant held a firearms licence nearly all of the matters upon which the Respondent relied were already known to Police. I therefore consider that his conduct, at least up until the 2008 incident, is now so long ago, that it should be afforded little weight.

50. As far as I could see, all of the incidents relied on by the Respondent, including the 2008 incident, occurred when the Applicant had consumed excessive alcohol. The Applicant said that nowadays he rarely drinks alcohol and, when he does so, it is in moderation. Mr Anderson remarked to that effect also. There was no evidence to the contrary, and I accept that the Applicant no longer drinks to excess.

51. The Respondent submitted that the Applicant’s responses in cross-examination tend to suggest he is a person who does not take responsibility for his conduct (except for two charges of PCA) and is prepared just to move on with his life. I consider though, that his position in relation to the 2008 incident, in particular, has been consistent; it would be more concerning, in my view, if his version had now changed such that he no longer asserted that he was assaulted, when this has, it appears, been his long held contention. The Applicant’s evidence was that he regretted that he did not engage a lawyer earlier to help him with his defence. I do not consider this an inappropriate response, especially in the context of his assertions.

52. The most recent incident - at McDonald’s Queanbeyan – is relatively inconsequential, and, in any event was now some 12 years ago.

Character references

53. The Applicant supplied 5 references from friends, family and work colleagues.

54. Ms Self wrote of the Applicant having matured over the 20 years she has known him. She referred to his community service such as being on the committee of his children’s daycare centre and a parent helper with Nippers, and as a participant in charity swims.

55. Mr Kellas, has known the Applicant for 13 years. Having read the s 58 documents he expressed surprise at what he described as the Applicant’s “youthful risk taking”. In contrast, he considers the Applicant to be the most risk averse member of their work team. He considered he has a good eye for future consequences resulting from irresponsible behaviour. He referred to the 2008 incident and said that the Applicant regretted his conduct that led to him being assaulted. He said the incident led to considerable soul-searching and lifestyle changes. He said the Applicant had a reputation in the industry as hard working and that he has the respect of both older and younger colleagues. He could not imagine the Applicant repeating the conduct of the past.

56. Ms Graham has known the Applicant for 17 years and, in that time has observed him mature into a family man who has moved on with his life. Similarly, Mr Woollett, who has known the Applicant for over a decade, considered the Applicant to have matured since that time.

57. Mr Anderson worked as the Applicant’s junior for some years and he learnt much from the Applicant. They became close friends. He recalled the 2008 incident and that the Applicant had, notwithstanding his injuries, nonetheless attended work the following day. He was embarrassed; he had been charged with assault; and he was frustrated as the altercation with the security guard had occurred some distance from the venue. He considered the Applicant may have been concussed and that had explained his conduct at the Police station. They had travelled extensively for work together and he had never observed the Applicant being involved in any altercation or violence. He said that nowadays the Applicant would prefer to take his kids for a surf than go for a beer.

58. Where there is no express mention to being aware of the adverse matters before the Tribunal, references should approached with caution and be given little to no weight: see, for example Sawires v the Commissioner of Police [2010] NSWADT 4 and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60. Some of the referees expressly referred to the s 58 materials, but the Applicant’s evidence was that all referees had been provided with a copy. He said he discussed the documents with them in general terms but did not go through the events in detail and provide his version. Others have known the Applicant for a considerable period of time and it is likely they were aware of the Applicant’s history, in any event. None of the referees were required for cross examination.

59. I accept the evidence of the referees because, on the evidence, they were provided with copies of the s 58 documents and, assuming they read them, were aware from the bundle of the Applicant’s history with Police and, nonetheless they still believed the Applicant to be of good fame and character.

Conclusion as to the ‘fit and proper person’ test

60. I accept that the Applicant made poor decisions in the past, especially when he was affected by alcohol. His last known transgression, if I were to accept the information about his involvement in the incident at Queanbeyan McDonald’s, is now some 12 years ago. The 2008 incident is now some 14 years ago. There was strong evidence that the 2008 and earlier incidents were precipitated by excessive alcohol consumption. There was also strong evidence that the Applicant has significantly reformed his lifestyle since that time, especially in relation to his consumption of alcohol - to the point where he rarely drinks at all.

61. For these reasons, I am comfortably 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.

Public interest

62. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.

63. 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. 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 deciding whether to exercise a discretion adversely to an individual.

64. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conductof the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

65. 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 Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. 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. 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].

66. The “public interest” factor allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

67. 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].

68. 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].

69. The Applicant said that he seeks a firearms licence because he proposes to soon acquire a rural property and that there is a need to have firearms to undertake normal farm duties. Also, he is concerned that on his father’s death he would be obliged to dispose of his father’s heirloom firearms collection.

70. Private interests, such as those articulated by the Applicant, however, are not the only matters 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. As I have observed many times, these matters 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].

71. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant’s prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. 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: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. There was no indication whatsoever that the Applicant would resort to the use of a firearm to settle a disagreement.

Conclusion

72. In summary, while the Tribunal can never be completely satisfied that there is no risk in the Applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding the licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for the Applicant to hold a firearms licence.

73. My conclusion is therefore that the Applicant is a fit and proper person to hold a firearms licence, and that it would not be contrary to the public interest for him to hold a licence at this time.

74. For the reasons outlined above, the correct and preferable decision is to set aside the decision of the Respondent to refuse the Applicant's application for a firearms licence.

DECISION

75. The decision of the Respondent to refuse the Applicant’s application for a firearms licence is set aside.

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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: 26 May 2022