Small v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Small v Commissioner of Police, NSW Police Force [2024] NSWCATAD 134
Hearing dates: 29 January 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
(1) The decision under review is set aside.
(2) The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

Catchwords:
ADMINISTRATIVE LAW — firearms licence refusal — fit and proper person — public interest — criminal history — traffic offences

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996

Cases Cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234
Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Hunt v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 88
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Keane v Commissioner of Police, NSW Police [2008] NSWADT 68
Lee v Health Care Complaints Commission [2012] NSWCA 80
McDonald v Director General of Social Security (1984) 1 FCR 354
Meacham v Commissioner of Police [2020] NSWCATAP 107
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449
O'Brien v Commissioner of Police [2022] NSWCATAD 259
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Tannous v Commissioner of Police [2011] NSWADT 116
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Category: Principal judgment
Parties: William Karl Small (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation:
Counsel:
T Lowe (Applicant)
Solicitors:
CDM Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2023/00296773
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Mr William Small (“the Applicant”) for review of a decision of a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”). The decision was to refuse the Applicant’s application for a category AB firearms licence under the Firearms Act 1996 (“the Act”).
The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review.
The Respondent considers that:

the Applicant is not a fit and proper person to hold a firearms licence within the meaning of section 11(3)(a) of the Act; and

issuing a firearms licence to the Applicant would be contrary to the public interest within the meaning of section 11(7) of the Act.

Background

The parties are in general agreement in regard to the background of the Respondent’s decision, although the Applicant has denied almost all of the allegations made by the Respondent as justification for the decision.
The Applicant held a firearms licence from August 1994 until it’s revocation in October 2012. The Applicant’s stated genuine reason for using and possessing firearms is to ‘shoot on rural land’ for the purpose of ‘recreational hunting/vermin control’.
The Applicant was the subject of charges that arose from an incident in Lake Cargelligo in November 2011 (“the 2011 incident”). He was charged with the following offences:

Carry firearm manner likely injure person/property-T2

Handle/use firearm under the influence of alcohol/drug-T2

Not keep firearm safely-not pistol/prohibited firearm

The charges were heard in July 2012. Two charges were withdrawn, and the Facts Sheet prepared for the Local Court hearing was amended to reflect the fact that those charges were withdrawn. The amended Facts Sheet that was handed up to the court stated:

FULL FACTS
The accused William Karl SMALL is the holder of New South Wales Firearms Licence No. 407034122. Under that licence the accused has possession of six registered firearms.
Acting on information Police caused the accused’s vehicle to stop on Johnston Street at the intersection with Reef Street. Police approached the vehicle and spoke with the accused who was the driver. The accused’s friend was a passenger.
When asked if he had a firearm in the vehicle, the accused replied: “Yes". When asked where the firearm was, the accused stated: "On the other side."
Police sighted the firearm in the passenger footwell near the console.
The accused was placed under arrest and cautioned.
The accused was conveyed to Lake Cargelligo Police Station and entered into the custody management system. The accused was explained his rights as per Part 9 of LEPRA, which he declined to sign acknowledgement of.
The accused participated in electronically recorded interview no. RO 211 254. In that interview the accused declined to answer any questions and no longer wished to be interviewed.

The Applicant was convicted of the offence of ‘Not keep firearm safely-not pistol/prohibited firearm’, receiving a $750 fine. His firearms licence was revoked in October 2012 and the revocation was affirmed on internal review.
As a consequence of the conviction, the Applicant was not eligible to hold a firearms licence for 10 years.
In June 2023, the Applicant made an application for a Category AB firearms licence. That application was refused, and the refusal is the subject of these proceedings. The Respondent contends that the correct and preferable decision is for the Application to be refused.
The internal review statement of reasons stated:

That on 27 November 2011, it was alleged that two vehicles were unlawfully accessed in Lome Street, Lake Cargelligo. It was reported that the owners of the said vehicles were friends of yours. Police report that you took your air rifle, placing it next to you on the driver’s side of your vehicle, and then proceeded to drive around the streets of Lake Cargelligo looking for the unknown offenders. It was alleged that the barrel of your air rifle was protruding out of your driver’s side window in full view of the public. It was further alleged that you approached several persons in the main street of Lake Cargelligo questioning them about the vehicles. These persons contacted Police and reported that you were driving around with a firearm. Police stopped your vehicle, asking if you had a firearm in the vehicle. Police report that you answered “Yes” and stated, “the firearm is on the other side.”

You further advised Police that you had consumed some wine and port prior to driving and handling the firearm. You were subjected to a roadside breath test returning a reading of 0.046. Police report that you spoke to several people on this evening with the firearm barrel being clearly visible through your opened window. Subsequently, your firearms licence was suspended, and firearms seized. You were also charged with the following offences:

•   Carry firearm manner likely injure person/property-T2
•   Handle/use firearm under the influence of alcohol/drug-T2
•   Not keep firearm safely-not pistol/prohibited firearm

That on 17 February 2012, Police were obtaining a statement from a person relating to the above incident. At the time of Police presence, it was reported that you contacted this person by phone asking them not to tell Police anything. Police attended your place of work, giving you an official warning regarding calling and/or interfering/intimidating a Police witness.

That on 5 July 2012, your charges were heard at Lake Cargelligo Local Court. Two charges were withdrawn, and you were convicted of the offence of Not keep firearm safely-not pistol/prohibited firearm’, receiving a $750 fine.

The Respondent also relies on additional material which contains information regarding other incidents which have brought the Applicant to the attention of police and also relies on the Applicant’s traffic record. These are described in the Respondent’s submissions in the following terms:

On 17 February 2012, Senior Constable Hooper attended upon Mrs Eliza Horsfall who was the owner of the vehicle broken into and a witness in the charges brought against the Applicant. Whilst Senior Constable Hooper was discussing the matter with her, Mrs Horsfall received a phone call … and the Senior Constable heard a male voice say the following:
‘Have you got the Police there have you.’
‘Do not tell them anything! Don’t say a thing.’

After the call concluded. Senior Constable Hooper asked her if it was the Applicant on the phone, which she confirmed it was the Applicant who had just made that call. Furthermore, she indicated that she was getting pressure from the Applicant and the Church regarding speaking to the Police about the matter.
...
More recently, in September 2019 the Applicant threatened to shoot his neighbour’s dog after it came into his yard and killed two of his chickens. (“the dog incident”)
...
In August 2022, the Applicant again came to the attention of the Police regarding an air compressor a contractor had left on the edge of his property that the Applicant was refusing to return due to a dispute over works done on the property. (“the air compressor incident”)
It appears that the Applicant was arguing that the earthmoving company had caused damage to his property during the works performed and he was now refusing to return the air compressor until this issue was resolved. Essentially, the Applicant was determined to hold property that he had no legal entitlement to hold or possess, for the sole purpose of blackmailing the other parties.
Even after Police intervened and attempted to have the air compressor returned to the rightful owner, the Applicant refused to cooperate with Police, instead he became argumentative with Police and refused to return the air compressor despite being told by Police to do so.
…

In regard to the Applicant’s traffic record, the Respondent noted that the Applicant has been infringing traffic laws since 1998, with the Applicant’s most recent infringement being on 22 August 2023. There are 19 infringements in total, and include, by way of summary:

• failing to wear seatbelt;
• speeding;
• using a mobile phone whilst driving;
• failing to obey traffic lights; and
• negligent driving.

The Respondent noted that:

[H]e has twice been charged with failing to wear his seatbelt and has committed speeding offences on 14 occasions. This culminated with the Applicant’s licence being suspended on 28 January 2021 due to exceeding his demerit points limit, causing the Applicant to either accept a period of suspension or accept a 12- month good behaviour licence period.
Despite this period of good behaviour, which expired on 3 March 2022, the Applicant has since committed three further driving offences. The offences were exceeding the speed limit by not more than 10 kilometres per hour on 29 July 2022 and 20 June 2023 and driving whilst using his mobile phone on 17 May 2023.
...
The Applicant was also charged with negligent driving following an incident on 10 July 2004 when Police witnessed the Applicant driving at speed and causing his tyres to spin round corners. Police then observed the Applicant to continue to swerve from side to side on the road and decided to pull the vehicle over.
… when pulled over by the Police the Applicant joked about the incident, stating to Police that he knew he was being followed and ‘thought he would make them think he was pissed or something.’

The issue for determination

The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision. This requires consideration of whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for him to hold a licence under the Act.

Nature of Proceedings

Section 9 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.
Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: see McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material so as to either confirm the original decision, vary it, or set it aside and substitute another. It was said in Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 at [77] (albeit in another context) that:

"[the] duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made."

Under section 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. The civil standard applies even if the conduct in question may be criminal: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. Accordingly, there is no burden or onus of proof on either party.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:

“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
…
[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”

In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
The Act sets up a scheme to license people to possess and use firearms. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The underlying principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Judicial Member Handley observed at paragraph [44]:

“44 The underlying principles of the Act stated in section 3(1) 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. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (‘Ward’), at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety:
“27. ... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.””

Section 11 of the Act provides for the issuing of licences. Subsections 11(3) and (7) provide:

(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.
...

Subsection 40(1)(a) of the Act provides:

40 Category A and category B licence requirements
(1) The holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies -
(a) when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the Commissioner and that is constructed of hard wood or steel and not easily penetrable,

Fit and proper person

The Act places an emphasis on the need for licensees being fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
The question of fitness and propriety is one of fact to be determined objectively, considering all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

The expression "public interest" is not defined in the Act. It is well established that, in considering the meaning of that term, the Tribunal will have regard to the context in which it appears. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

The “public interest” allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
“Public interest” embraces standards acknowledged to be ‘for the good order of society and for the wellbeing of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is ‘to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration’: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the “overriding need to ensure public safety”: Firearms Act s 3(1)(a). Public safety is improved by “imposing strict controls on the possession and use of firearms” and by “promoting the safe and responsible storage and use of firearms”: Firearms Act s 3(1)(b). The objects of the Act include “to establish an integrated licensing and registration scheme for all firearms;” “to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;” and “to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms”: Firearms Act, s 3(2)(b), (c) and (d).
25. In that statutory context it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...

In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Material before the Tribunal

The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act (“the section 58 material”). This material includes a number of records held in the Respondent’s electronic database (“COPs”). The section 58 material includes information about the circumstances surrounding the incident in Lake Cargelligo in November 2011 – including statements and an unamended Facts Sheet prepared for the local court proceedings; an incident in September 2019 in regard to the alleged threat by the Applicant to shoot a neighbour's dog; an incident in August 2022 regarding the allegation that the Applicant was refusing to return an air compressor due to a dispute over works done on his property; and the Applicant’s traffic record. Ms Chenhall, the Respondent’s solicitor also provided written and oral submissions.
The Applicant relies on his own evidence. He provided two affidavits in support of his application. His first affidavit was sworn on 29 November 2023 (“first affidavit”) and his second affidavit is dated 24 January 2024 (“second affidavit”). He annexed to his second affidavit a copy of the amended Facts Sheet handed up in the local court proceedings. The section 58 material also contains references provided in support of the Applicant for the Local Court proceedings. Mr Lowe, the Applicant’s counsel, provided both written and oral submissions.

The Respondent’s Case

The Respondent contends that there are number of considerations that are relevant to the question of whether the Applicant should be permitted to hold a firearms licence. As noted above, the Respondent has provided material in relation to the 2011 incident; the dog incident; the air compressor incident; the February 2012 phone call and the Applicant’s traffic record.

The 2011 incident

As has been noted, the Applicant was the subject of charges that arose from the 2011 incident. He was convicted of the offence of ‘Not keep firearm safely-not pistol/prohibited firearm’, while the other charges were withdrawn. The amended Statement of Facts is in evidence and referred to above.
The Respondent contends that it is an applicant's conduct, not their conviction that is of concern to the Tribunal. In that regard, the Respondent relies on the views expressed in Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (“Joseph v Commissioner of Police”) at paragraphs [62] - [64:

62. Before this Court, Mr Joseph relied upon the Appeal Panel decision in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], which is in the following terms:
“20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.”

63. When read as a whole, this paragraph does not assist Mr Joseph. Its tenor is consistent with what I have said above, in particular in its affirmation that there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence.
64. In the present case, the hearsay evidence of a police prosecutor’s view that he did not have direct evidence sufficient to discharge the criminal onus in relation to one element of the relevant offences did not detract from the substantial weight of the other evidence of the 2007 events. First, the only evidence led before the Tribunal as to whether the relevant offences could be proved (as distinct from the hearsay assertions of the police prosecutor about his belief) was Detective Harris’ statement that there was direct evidence of Mr Joseph’s knowledge. Secondly, even in the absence of that evidence, the other evidence of the 2007 events was relevant to the Commissioner’s decision on Mr Joseph’s licence application because it at least raised a strong suspicion that Mr Joseph had been involved in dishonest activities.

The Respondent relies on statements and other material related to the 2011 incident. These include statements by Senior Constable Leigh Hooper dated 4 January 2012 and 17 February 2012; a statement by Constable Mark Williamson dated 19 January 2012; a statement by Grant Stephen dated 27 November 2011 and a statement by Mr Dutton dated 31 January 2012. The Respondent also provided the transcript of an electronically recorded interview by Senior Constable Hooper and Constable Williamson and the Applicant at Lake Cargelligo Police Station on Sunday 27 November 2011. The transcript shows that the Applicant exercised his right to not answer questions.

Senior Constable Leigh Hooper

On 27 November 2011, Senior Constable Hooper and Constable Williamson attended a location in Lake Cargelligo in response to a message broadcasted via police radio. They subsequently located the Applicant’s vehicle. The Applicant was in the vehicle, with Grant Stephen seated in the front passenger seat and the Applicant’s son was seated in the rear passenger seat.

They spoke with the Applicant who informed them that he had an air-rifle in the vehicle. They were handed the firearms and observed that it was not loaded.

The Applicant was placed under arrest for firearms offences.

The Applicant said words similar to: "Two cars were broken into before and we're sick of this. Nothing ever gets done."

When asked if the matter had been reported to the police to report it, the Applicant said, "l don't know."

Senior Constable Hooper observed the Applicant’s eyes to be slightly bloodshot and glassy so he was breath-tested. The Applicant stated: "I've had a few wines and some port."

The test returned a negative reading of 0.046.

Mr. Stephen stated that the Applicant had the firearm with him while he was driving. Mr. Stephen stated that the firearm was positioned "between his seat and the door. The barrel was out the window."

The Applicant was conveyed to Lake Cargelligo Police where he declined to sign any documents or to answer any questions and indicated that he did not wish to be interviewed.

The Respondent submits that the entire 2011 incident is of serious concern and that the risk to public safety was a real issue then and remains a real issue now, despite the passage of time. The Respondent points to views expressed by the Court of Appeal in Lee v Health Care Complaints Commission [2012] NSWCA 80 at paragraphs [72] to [73]:

72. Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said:
"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW)(Pt 2) 275 at 286:
"... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."

73. A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct.

The decision in in Lee v Health Care Complaints Commission has been adopted in this Tribunal in relation to firearms matters. In Hunt v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 88 Senior Member Walker stated at paragraph [42]:

Although there has been no repetition of this kind of episode since then, the conduct occurred when the applicant was an adult and was of a serious nature. While the incident is not recent, the mere passage of time does not in itself demonstrate a reformation of character. In Lee v Health Care Complaints Commission [2012] NSWCA 80, [7] – [73], the Court of Appeal quoted with approval from the well-known case Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637 – 638, where the Court of Appeal stated that such cases required an applicant to adduce “Clear proof that some years later he has established himself as a changed man”. By “changed man” the court presumably meant that there was positive evidence that his conduct had changed for the better. In this case the applicant has adduced evidence by way of references and certificates, ...

The Respondent submits that the 2011 incident shows an astounding lack of self-control on the part of the Applicant, and it shows a flagrant lack of regard for the law, for the safety of others, the safety of the Applicant himself and a belief that he is somehow above the law. The Respondent submits that the offences and the behaviour of the Applicant were so serious that the Tribunal could not be satisfied that there is virtually no risk in granting the Applicant his firearms licence, despite the passage of time.
The Respondent submits that the Tribunal could not be satisfied that the Applicant’s character is in any way reformed to the extent that it could be said that he would comply with his statutory obligations.

Constable Mark Williamson

Constable Williamson confirmed that he was rostered to work with Senior Constable Hooper on 27 November 2011. He saw Senior Constable Hooper appear to be engaged in a conversation with the Applicant at the driver's window, however, he could not hear the content of the conversation.

He observed the air-rifle located in the Applicant’s vehicle and saw Mr Stephen pass the firearm out of the window to Senior Constable Hooper. He rendered the weapon safe, confirming that it was unloaded.

He heard Senior Constable Hooper and the Applicant have a conversation. In his statement he repeated that content of the conversation as was recorded by Senior Constable Hooper.

The Applicant was transferred to the police station and Senior Constable Hooper explained the Applicant’s rights while in custody. The Applicant declined to sign anything and declined to be interviewed.

Mr Stephen attended the police station and shortly afterwards he provided a statement in relation to the events of that evening.

Later the same night he and Senior Constable Hooper attended the Applicant’s residence and seized the Applicant’s firearms and his firearms licence. The Applicant was also issued with a firearms suspension notice.

Mr Dutton

Mr Dutton provided a statement dated 31 January 2012. He stated that:

At about 9:10pm on Sunday 27 November 2011, he was walking with his cousin along Lorne Street in Lake Cargelligo. He saw a car that drove directly towards them with its high beams on and stopped beside them.

When the car stopped, he saw that the driver's window was down and that the Applicant was the driver and another male was in the front passenger seat.

He and the Applicant had the following conversation:

The Applicant said: "Who broke into the car up that end of town (pointing over his shoulder)?"
Mr Dutton said: "You can see that we're coming from the other side of town.”

He saw the barrel of a gun pointing out the window towards him. The barrel looked to be about 30 to 40 centimetres long. The Applicant wasn't holding it at them, but it was pointing towards them. The barrel was facing on an angle, but he couldn't see the stock of it.

He felt frightened because of the way the gun was pointing towards him and the way that the car had driven straight towards them.

He and the Applicant had the further conversation:

The Applicant said: "Well did you see anyone or did anyone run past you?"
Mr Dutton said: "No."
The Applicant said: "Well some cunts gonna get shot tonight!"

When the Applicant said that, Mr Dutton was scared and didn't know if the Applicant was gonna do anything with the gun, or not.

The Applicant then did a u-turn and turned left up Foster Street. Mr Dutton said that he jumped straight on the phone and called the police. While he waited for the police, he saw the Applicant's vehicle drive going up and down a few different lanes.

He has known the Applicant for most of my life because I grew up at Lake Cargelligo. He knew the Applicant from around the town and had never had any problems with him before that night.

Grant Stephen

Mr Stephen has known the Applicant for many years as a close personal friend. On 27 November Mr Stephen and his family attended the Applicant's home to have dinner. He stated that:

At about 9.00 pm someone in the Applicant's family received a call. He was told about a break-in of a neighbour’s car.

The Applicant asked him to go for a ride and he got ready and went to the car with the Applicant's son. The Applicant was already in the car waiting. When he got in the passenger seat, he saw an air rifle in the foot well.

The Applicant drove his car through the centre of town and then around the block.

At some time, the Applicant stopped the car in Foster Street and spoke to two males who were sitting at the side of the road drinking and asked them if they had seen any young kid's running around.

One of the males responded: "Nah, haven't seen anyone."

They continued to look around on the streets for a very short time before the police stopped their vehicle.

In regard to the location of the firearm during this trip, Mr Stephen stated:

“At times the air rifle was on the floor and at other times the Applicant was holding it, I do not recall exactly when. He was not waving it around or anything like that, it was probably resting on the driver's mirror. The other end was probably in his lap. I was not paying much attention to where it was at any time. I knew that it was unloaded, it had been discussed earlier.
…
I believe Will was just trying to scare the guys who broke into the car, we did not know who it might be but we were looking for people on the street and had good intentions.”

The February 2012 phone call

Senior Constable Hooper stated that on 17 February 2012 Senior Constable Hooper met with Mrs Eliza Horsfall to obtain a witness statement for use in the Applicant’s Local Court proceedings. Whilst there, Mrs Horsfall received a phone call. Senior Constable Hooper stated that he heard a male voice say, "Have you got the police there, have you?" and "Do not tell them anything! Don't say a thing!"

Senior Constable Hooper observed Mrs Horsfall to appear quite nervous and she had a worried look on her face. Senior Constable Hooper asked her "That was Will on the phone wasn't it?"

Mrs Horsfall said, "Yes." "l don't know what to do. I keep getting pressured from within the Plymouth Brethren about this."

Mrs Horsfall said:

"I really haven't got anything to do with any of this. Kristy's car got broken into and I came down to see you that night to report the break-in to her car. I didn't know anything about what Will did that night."

A short time later Senior Constable Hooper located the Applicant, and said:

"Will. Can you come back here? I need to speak to you mate."

The Applicant walked back, and Senior Constable Hooper had a conversation with him. He informed that Applicant that Mrs Horsfall had signed a statement and gave him a copy. He warned the Applicant against pressuring Mrs Horsfall to not make a statement.

The Applicant said:

"Don't call me mate! I have a name and-there's a reason for calling me by my name. Mate is a dog term." And "I'm not your mate."

The Respondent submits that the Applicant sought to intimidate Mrs Horsfall, so that she would not provide information to the Police that would be detrimental to him. The Respondent submits that the Tribunal would understand the serious risks associated with the Applicant having access to firearms, when he conducts himself in such a manner and attempts to prevent a member of the community speaking with Police who are investigating a criminal offence.

The dog incident

The Respondent contends that in September 2019 the Applicant threatened to shoot his neighbour's dog after it came into his yard and killed two of his chickens. A COPs entry in relation to the incident states:

About 9. 20am on Saturday 28th September 2019 a child of [the Applicant’s neighbour] has opened the front gate of the residence … resulting in their Dog escaping and killing two chickens at [the property] belonging to William SMALL. SMALL has captured the Dog and threatened to shoot it before contacting Lachlan Shire Council Rangers. [The Applicant’s neighbour] has attended the address of SMALL and apologised and offered to replace the chickens, which was agreed to by SMALL who returned to Dog to them.
Lachlan Shire Rangers attended soon after and SMALL wanted no action taken in relation to the incident. Rangers spoke to [the Applicant’s neighbour] who was given two weeks to register and microchip the animal to which [the Applicant’s neighbour] has agreed to do. The Rangers were satisfied with this outcome and decided that no action would be taken in relation to the matter.
[The Applicant’s neighbour] has since padlocked the gate to prevent a repeat occurrence.
Police spoke to SMALL who also wished for no action to be taken in relation to the matter.
For record.

The Respondent submits that, yet again the Applicant has resorted to threats of violence with a firearm and that this is of grave concern in relation to being licensed to possess and use firearms.

The air compressor incident

The Respondent notes that the Applicant again came to the attention of the Police in August 2022, regarding an air compressor a contractor had left on the edge of his property. It was alleged that the Applicant was refusing to return the air compressor due to a dispute over works done on the Applicant’s property.
The Respondent contends that the dispute related to the Applicant’s allegation that the contractor, an earthmoving company, had caused damage to his property during the works. He was refusing to return the air compressor until that issue was resolved. The Respondent submits that the Applicant was determined to hold property for the sole purpose of blackmailing the other party.
The Respondent contends that even after Police intervened and attempted to have the air compressor returned to the rightful owner, the Applicant refused to cooperate with Police, and refused to return the air compressor despite being told by Police to do so.
The Respondent submits that the Applicant is happy to bully and threaten others to get his own way. He has a pattern of resorting to aggressive behaviour and threats when he is confronted with a situation he does not like.
The Respondent submits that the Tribunal cannot find he is a fit and proper person to hold a firearms licence, nor that it is in the public interest for him to do so.

The Applicant’s traffic record.

A summary of the Applicant’s traffic record is set out above. The Respondent submits that the Applicant has a 25-year period of numerous infringements of the road rules and that he has maintained a course of conduct which shows a disregard for the law and for public safety, including his own. The Respondent submits that this pattern of behaviour is cause for serious concern and that monetary fines and the suspension of his licence have failed to deter him from committing further offences. The Applicant has ignored the dangers and knowingly placed other road users and members of the public at the risk through his refusal to abide by statutory rules in place for the protection of himself and others.
The Respondent referred to my decision in O'Brien v Commissioner of Police [2022] NSWCATAD 259 (“O'Brien v Commissioner of Police”). In O'Brien v Commissioner of Police, I stated from paragraph [58]:

58.   The Commissioner is concerned that this history demonstrates a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I share that concern.
59.   I have referred to a number of decisions of this Tribunal which have dealt with similar issues. I agree with the Applicant that none of those cases have facts that are identical to this matter. However, it has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance. In that regard I do not agree with the Applicant’s submission that it is unfair to compare a lack of compliance with traffic laws and the likelihood that he might adopt a similar view towards compliance with firearm legislation.
60.   Nevertheless, I agree with the Applicant that his most recent past conduct should be given greater weight than earlier behaviour if it suggests a change of attitude. I note the Applicant’s evidence of his strict compliance with legislation applicable to his work as well as the regulations and site-based policies and procedures. This provides a clear contrast to the extensive history of traffic infringements.
61.   The immediate difficulty that this history of traffic infringements poses is that it has continued over a very long period. The offences commenced while he was still on his Learners Permit in 1994 and the most recent infringements were in May 2021.

In O'Brien v Commissioner of Police, the applicant had a long, sustained history of traffic infringements by a firearms licence applicant. The firearms licence application was ultimately refused on the basis of the poor traffic record.
The Respondent also referred to the decision in Tannous v Commissioner of Police [2011] NSWADT 116 where the Tribunal was of the view that, when looking at an applicant’s conduct as a whole, if there is concern that repeated breaches of the law indicate a lack of regard for the law and safety, then the Tribunal would conclude it was not in the public interest for the Applicant to hold a firearms licence.
In the present matter, the Respondent contends that, given the Applicant’s longstanding disregard for the traffic regulatory scheme, the Tribunal cannot be satisfied that the Applicant will not disregard aspects of the firearms regulatory scheme. The Respondent submits that the Applicant’s traffic record shows a consistent and flagrant disregard for the law and there is no evidence to indicate that this has changed. Accordingly, the Tribunal simply cannot be satisfied that it is in the public interest for the Applicant to hold a firearms licence.

The Applicant’s need for a licence

The Respondent notes that the Applicant claims that he requires a licence to use firearms to manage his livestock and control vermin. However, it is submitted that the Applicant has been without a firearms licence for a significant period of time and would have made arrangements to address these issues. The Respondent submits that it would be prudent and simple for him to employ a professional shooter to deal with feral animals. In the circumstances, the Respondent submits that the Applicant’s evidence in this regard should be given little weight.
The Respondent further submits that on numerous occasions the Tribunal has accepted that the public’s right to safety must outweigh any financial impact that might flow from the loss of a firearms licence.

The Respondent’s Conclusion

The Respondent submits that the Applicant’s aggressive behaviour towards others indicates a strong disrespect for others and the law in general. He has no remorse for his actions and has failed to take responsibility for them. Furthermore, his traffic record is littered with offences, and it would appear that he has an inability to comply with the law.
The Respondent submits that the Tribunal would not be satisfied that the Applicant is a fit and proper person to hold a firearms licence, nor is it in the public interest for him to do so. Accordingly, the decision to refuse the licence application was correct and preferable and it should be affirmed.

The Applicant’s Case

The Applicant has provided two affidavits and he also attended the hearing, gave evidence, and was cross-examined. His evidence is that he requires a firearms licence for the management of livestock and the control of pests on his rural property at Cobar NSW. In his first affidavit he stated:

I have a genuine and pressing need for a firearms licence as a primary producer. We breed Kalahari x Rangeland goats at our property, and current numbers of wild pigs have brought our neighbour’s lambing rates down to 20% lambing.
There is a terrible threat of the area being overrun with feral pigs causing a huge loss of money coming into our outback community.
There is a pressing need for me to cull pests to protect my livestock.
There have been 2 wild dog sightings on the property in the last 12 weeks which won't be helping with nannie goats kidding out currently. We have been pre feeding pigs with grain and then poisoning for pests, but due to so much other food available they are not taking to the grain that well and poisoning is resulting in only small numbers being poisoned,

He elaborated on those circumstances in his evidence before the Tribunal.
In his affidavits and under cross-examination he provided evidence about each of the issues raised by the Respondent.

The 2011 incident

The Applicant does not dispute that he was charged with three offences:

Carry firearm manner likely injure person/property-T2

Handle/use firearm under the influence of alcohol/drug-T2

Not keep firearm safely-not pistol/prohibited firearm

He does not dispute that he was convicted of the offence of ‘Not keep firearm safely-not pistol/prohibited firearm’.
However, he denies most of the Respondent’s contentions in relation to his conduct on the night of 27 November 2011. In his first affidavit he stated:

On the evening of 27 November 2011, I was contacted by a local resident, Mrs Horsfall, from across the road. She rang me very scared and concerned for the fact that persons were in the process of stealing two cars from her driveway.
She asked me to come over immediately to help.
I got into my car with my son and Grant Stevens and drove toward Mrs Horsfall’s home to help her. I picked up my air rifle and placed it inside the vehicle. It was not loaded and there was no ammunition inside the vehicle.
We tried to locate the persons responsible for the theft or attempted theft of Mrs Horsfall’s vehicles.
I accept taking the air rifle in the car was the entirely wrong thing to do in the circumstances and understand there are public interest considerations and safety concerns for when firearms are presented during any type of confrontation.
Further, trying to find the offenders was a matter that I should have left to the police to deal with.
My judgement at the time - which I accept now was wrong - included that I wanted to help Mrs Horsfall.
I have had many years - in fact 12/13 years - to reflect on what I did, being the time period that I have been without a licence. I know and believe that I would never make the same decision again.
I acknowledge that the use of firearms must strictly be in accordance with the requirements of the legislation and consistent with the licence requirements that applies to the licence holder.
The use of a firearm for the purpose of a self-defence is entirely unacceptable and an obvious concern for the community,
I wish to point out that I never intended to use the air rifle for self-defence on the night in question - this is evidenced by the fact the air rifle was not loaded, nor was there any ammunition inside the car.
I do not suggest the above excuses my behaviour - however it supports my evidence that I was not and could not have fired the rifle in self-defence.
…
The suggestion that I was under the influence of alcohol at the time is wrong. I had consumed alcohol that evening, but a small amount, I was not under the influence of alcohol nor felt physically or mentally effected, at the time, at all,
The police say my eyes were bloodshot. Perhaps they were - I am unable to confirm or deny this claim; however, it is important to point out that I suffer from chronic hay fever and allergy from native grasses during spring. I took then (and still take) medication for this condition. I suspect my medication may have worn off by that time of the evening, and the allergy leads to red, watery eyes, and running nose. This may have led to my eyes being red. Furthermore, I also recall on the morning of the incident, that I had been woken at 4am by dogs in the neighbourhood and suspected at the time that this was due to thieves moving around the neighbourhood because theft was such a problem at the time. In essence, I was very tired that evening because of having woken early.
At no time was the barrel of the firearm pointed outside of the vehicle in any manner.
At no time did I threaten any person with the firearm.

He accepted that he had been drinking on the evening but denied that he had been under the influence of alcohol. He agreed that he didn’t raise his hay fever with police but said that he had simply answered the questions that he had been asked.
Under cross-examination the Applicant said that he took the air rifle with him in the car because he didn’t want to leave it unattended in the house. He said that he was the only one in the house who had a firearms licence and therefore it should not have been left unattended with unlicensed people. He said that he had been using the firearm earlier in the day and had not put it away in the safe. He could not suggest a reason why he had not put the firearm in the safe earlier in the day.
He agreed that he had not included these reasons for taking the firearm with him in either of his affidavits.
The Applicant agreed that there is no record in the COPs database that indicates that he told the police why he had the firearm with him. However, he said that he answered the questions that he was asked by the police and that he would have given the information if he had been asked about it.

The Applicant struggled to answer many of the questions put to him in cross-examination and was unable to recall many of the details about which he was questioned. However, he was consistent in his denial of the allegations related to the manner in which the firearm was carried in the car. He denied that he held the firearm while driving and he denied that it was resting on the driver’s side mirror. He also denied that he had any intention to threaten anyone with the firearms.
With respect to the legislative requirements for the safe storage of the firearms, the Applicant stated his understanding that firearms are required to be kept in a safe manner, locked or secured when not being used or carried. He said that that most of his firearms were stored in a properly approved safe. However, he also stated that he considered that a locked house was sufficient to meet the requirement that firearms are to be kept in a safe manner.
He denied that he had ample time to secure the air rifle before taking it in the car. He also denied that he took the air rifle with him to intimidate anyone.
Under re-examination the Applicant stated that he understood that, when not being used or carried, a firearm is to be stored in a safe. He was asked about his proximity to the firearm after he returned to his residence and before he took the firearm with him in the car on the night of 27 November 2011.
He said that he had been discharging the air rifle on the farm. He could not remember what he did with the firearm after he returned home from the farm. However, he said that he would have unloaded the firearm before leaving the property and it was a common occurrence to clean a firearm before placing it in the safe. His other firearms were locked in the safe.
He did not have a recollection of what he did with the firearm after he got home and before he took it to drive to the streets of Lake Cargelligo. He could not think of a particular reason why he did not put the firearm in the safe. The following exchange took place in the re-examination:

Mr Lowe asked the Applicant the question:
How far away were you from the rifle Mr Small, between the time that you returned to the shed with it and the time that you picked it up and took it to the car?

The Applicant answered:
I would say that it was on me, which would mean that it was within arm’s reach.

Mr Lowe asked:
The whole time?

The Applicant answered:
Correct.

Mr Lowe asked:
If the firearm was not on you, or if a firearm is, in the present day, not on you, what is your knowledge and understanding of your responsibilities to secure that firearm? What should you do?

The Applicant answered:
It should be in the safe, locked up, in the safe, and only one key and the key to be on you at all times.

The Applicant also clarified that he has not had any arrangements in place for the culling of pests or management of injured stock. However, he has occasionally allowed shooters onto his property at the request of his neighbours.
As noted, Mr Lowe provided written submissions. In relation to Local Court hearing of the 2011 incident he submitted:

In essence, the prosecution had no evidence at the hearing of the matter that Mr Small ever threatened a person with a firearm.
Similarly in the present matter, the respondent has not served or filed any evidence of statements/affidavits prepared by witnesses to those events for the discreet purpose of these proceedings, in its attempt to prove Mr Small was and /or is a violent man.
… on 5 July 2012 the applicant was at Lake Cargelligo court with his Barrister, Ms Rowan, for a defended hearing of the case against him. The prosecution could not present any civilian witnesses concerning the allegation that Mr Small had acted in a threatening manner. A plea of guilty was entered to the lesser charge of Not Keep Firearm Safely, and the facts sheet was substantially amended to accord with the applicant's acknowledgment of wrongdoing but on a much-limited basis and based upon the available evidence.
Accordingly, as it pertains to the current proceedings - the statements of civilian witnesses in the Respondent's supplementary bundle 2 are objected to if used for a hearsay purpose (not for other purposes) for these reasons; Those statements were prepared some 13 years earlier, were not prepared for the purposes of these current proceedings and are … fundamentally unreliable on the basis the witnesses failed to attend court and affirm their previous assertions or evidence - such that their use for a hearsay purpose gives rise to a manifest procedural unfairness to Mr Small.
The applicant was never convicted of any offence concerning brandishing, inappropriate handling, or threatening any person with a firearm.

The February 2012 phone call

The Applicant agreed that he called Mrs Horsfall on 17 February 2012. He said that he was aware that the police were parked outside her house, but he didn’t know that they were talking to her. He denied calling her to stop her from speaking to the police. He said that he probably rang to console her as her husband was away and she gets upset easily. He did not remember telling her to not tell the police anything.
He remembered that Senior Constable Hooper had a conversation with him afterwards, but he was not sure what was said. He did recall that there was something about the way Senior Constable Hooper had spoken to him to which he took umbrage.
The Applicant rejects any suggestion that he intimidated Ms Horsfall concerning the giving of evidence to police. Ms Horsfall has never said she felt intimidated, and indeed the Applicant went to her aid on the night on the night of 27 November 2011.

The dog incident

The Applicant denied that he threatened to shoot his neighbour's dog after it came into his yard and mauled two of his chickens. In his second affidavit he stated:

I do not dispute the information contained in the respondent's material that in 2019 the neighbour’s dog came onto our property.
I deny the submission that I threatened violence.
The dog is a vicious and dangerous large 'pig dog'.
Pig dogs are animals which are specifically bred for hunting wild pigs particularly in our rural regions. They are large, powerful, and aggressive. They are bred to be so.
This was not the first time the dog had come onto our property.
Because the neighbour was failing to keep the dog safely confined and restrained on more than one occasion, I was very worried for my safety and my family’s safety, as well as occupants / visitors to my property.
On the day and when the dog was in our yard, I recall yelling something to the neighbour about the dog needing to be put down because of the risk it posed to us and others.
I never threatened to kill the animal.
In that regard, I did not have the means to harm it by using a firearm because I was not licensed to hold a firearm nor did I have possession of a firearm, nor would I want to harm the animal.
I had earlier contacted Council Rangers in previous weeks about my concerns for our safety from this animal.
I later returned the dog to the neighbour, and I spoke to police the same day. 1 did not press charges against the neighbour.

Under cross-examination he said that he held onto the dog until the ranger arrived and that he came to some agreement with the neighbour in relation to the chickens, but he could not remember what it was.
Mr Lowe noted that no action was ever taken by police in this case i.e. no investigation or any follow up whatsoever, according to the COPs event, concerning the Applicant’s actions.

The air compressor incident

The Applicant referred to the air compressor incident in his second affidavit. He stated:

The suggestion that I was uncooperative with police in relation to the 2022 Compressor incident is entirely denied.
The suggestion that I intended to act unlawfully or steal this item is wrong and offensive.
This issue was essentially a civil dispute arising from works conducted on my land.
Upon being asked by police to attend a police station to sort the issue out, that it is exactly what I did.
I went to Cobar Police Station around the date of 25 August 2022 - with and in possession of the compressor machine - to hand deliver it to the police so they could arrange for the owner to collect it.
I read the respondent’s material that the COPs event also records that police asked me to come to the police station on 26 August 2022.
When I arrived at the police station, the officer I spoke to (I do not recall his name) told me police could not accept the item.
Because police could not take possession of it. I drove to a nearby property that I believed the contractors were working on, to return the machine.
I drove approximately 8 kilometres inside the boundary of the property and came across one Toyota Landcruiser, and another Landcruiser which belonged to one of the contractors.
Because the persons and I had been in a dispute, I did not want to deal directly with those persons, so I left the compressor on the ground near one of the Landcruisers. I took a photo of where I placed the compressor on the ground.

A copy of the photo is annexed to the second affidavit.
Under cross-examination the Applicant denied that he had fabricated the evidence about his dealing with the Cobar police. He agreed that the COPs entry made no mention of those conversations.
Mr Lowe submitted that:

There are no statements or affidavits, or direct/original/documentary evidence provided by the Respondent, in support of the contention that the Applicant acted illegally and criminally or was seeking to blackmail someone or was uncooperative with police.

This was plainly a civil dispute concerning an air compressor in relation to work carried out on the Applicant's property.

The Respondent's own material indicates that the Applicant agreed with a request by police to attend Cobar Police Station on 22 August 2022 to try and sort the matter out.

The Applicant was cooperative with police.

The Applicant attended a police station in an attempt to have the item returned on direction of police, and in fact returned it.

When the police told the Applicant that they could not accept the air compressor from him, he then drove to the property where he believed the owner of the air compressor was working, drove about 8 kilometres into the boundary of the property and left the compressor on the ground near two Toyota Landcruiser Vehicles which he believed to be owned by the persons claiming ownership of the compressor.

Mr Lowe submitted that the air compressor incident has limited, if any, relevance to whether the Applicant poses a risk to public safety in the context of the firearms safety regime.

The Applicant’s traffic record

The Applicant does not dispute the traffic record as set out above. He denied that he has not changed his driving habits.
In relation to the matter of O'Brien v Commissioner of Police, Mr Lowe submitted:

the Applicant's traffic history bears no similarity to O'Brien v Commissioner of Police.

Mr O'Brien's driving record was plainly worse than the Applicant's by some significant degree. Those offences included a Mid-range PCA, a Low range PCA, and a Drive Manner Dangerously. In fact, Mr O'Brien was disqualified by the courts. It was sustained serious offending during a confined period that caused concern for public safety.

The Applicant has held a driver's licence for 38 years, and there are 19 infringements recorded on the traffic history. His drivers' licence has never been suspended nor has he ever been charged with a serious traffic offence.

That traffic record does not provide a reason to refuse the Applicant's application for a firearms licence.

Submissions

In his written submissions, Mr Lowe submitted that the Applicant:

regrets taking the air rifle and putting it in his car in the circumstances of the 2011 incident.

has had 14 years to reflect on the 2011 incident and upon what was a poor decision.

has provided a sincere and open admission about the wrongness of his decision, why it was wrong in the context of gun safety and public safety, what he has since learnt from his experience, and whether he will do it again. He says under oath that he will not.

is not a person at any risk of repeating the same mistake twice.

is a man of good character and prior to the 2011 incident, had held a firearms licence for some 27 years with an unblemished record.

has learnt valuable lessons about appropriate gun safety from what was a confronting and harsh experience.

has provided good character references that attest to his good character.

Mr Lowe conceded that lapse of time is not determinative of whether the Applicant will repeat the same or similar behaviour. However, it is plain the event in 2011 took place some 13-14 years ago and the Applicant has since confronted the difficulties of not having a gun licence over an extended period. He is not a person who is likely repeat the same behaviour.
It is submitted there is no real appreciable risk to public safety in the circumstances, nor has the Respondent demonstrated that the Applicant is not a fit and proper person.
Accordingly, it is submitted the correct and preferable decision in all the circumstances would be to grant the Applicant an AB Firearms Licence.

Consideration

This is a matter in which the Respondent relies on evidence which was prepared for the purposes of the Local court procedures in relation to the 2011 incident, the Applicant’s traffic record, and COPs entries in relation to the other issues. The Respondent has no evidence that was prepared for the purposes of these proceedings and did not produce any witnesses.
It is not in dispute that the sworn evidence that was prepared for the purposes of the Local court procedures was never tested in the Local court. It seems that witnesses were not available to give evidence at that hearing, and as a consequence two of the charges were withdrawn. The Applicant entered a guilty plea in relation to the third charge.
The Respondent now relies on the untested evidence and neither the Applicant nor the Tribunal has the opportunity to test the evidence or to assess the credibility of those witnesses. Similarly, the Respondent relies on the information contained in the COPs database but neither the Applicant nor the Tribunal has the opportunity to test that evidence.
In contrast, the Applicant has provided sworn evidence and was available for cross-examination.
The Respondent relies on the decision in Joseph v Commissioner of Police in support of its contention that, in determining whether it would be contrary to the public interest for an individual to hold a licence, it is not relevant that charges have not been established to the criminal standard. The Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in the individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed. It is the conduct, rather than the conviction, that is of concern to the Tribunal.
In the circumstance of this matter, I accept that some weight is to be given to the material put forward by the Respondent. However, I note that the Applicant denied the two charges that were withdrawn. I have before me the sworn evidence of Senior Constable Hooper and Constable Williamson. They each prepared statements in 2012 in which they gave evidence in relation to the 2011 incident. Neither was available for the hearing in this matter and the Applicant did not have the opportunity to test their evidence in the Local Court. Similarly, neither Mr Dutton nor Mr Stephen was available for the hearing in this matter and the Applicant did not have the opportunity to test their evidence in the Local Court.
In contrast, the Applicant provided sworn evidence and was cross-examined. In these circumstances, I give greater weight to the Applicant’s evidence where it contradicts the evidence provided in the statements on which the Respondent relies.
The Applicant did not have a clear recollection of many aspects of the 2011 incident. However, he has consistently denied the allegations that he did not hold the air rifle whilst he was driving; that it was not resting on the driver's mirror whilst he was driving; and that he did not threaten anyone with the firearm.
The evidence of Mr Stephen was that at some stage the Applicant was holding the air rifle and at times it was on the floor of the vehicle. He could not recall exactly when the Applicant was holding it. His evidence was that the Applicant was not waving it around and that it was probably resting on the driver's mirror. It is clear from this evidence that Mr Stephen was not certain about the sequence of events. It is possible that his evidence does not contradict that Applicant’s assertion that he did not hold the air rifle whilst he was driving and that it was not resting on the driver's mirror after he left home. Without the opportunity to test that evidence, I accept the Applicant’s evidence.
As noted, the Applicant was charged with the offences:

• Carry firearm manner likely injure person/property-T2
• Handle/use firearm under the influence of alcohol/drug-T2

Those charges were withdrawn but it is still open to the Tribunal to find that the conduct related to those charges occurred. However, on the evidence before me, I am not satisfied that the conduct occurred as alleged. In the circumstances I am not satisfied that on the evening of the 2011 incident the Applicant carried the air rifle in a manner likely to injure person or property or that he handled or used the firearm under the influence of alcohol.
With respect to the allegation that the Applicant intimidated Mrs Horsfall concerning the giving of evidence to police, the Respondent relies on the evidence of Senior Constable Hooper who stated that he overheard a telephone conversation between Mrs Horsfall and the Applicant.
There is no evidence from Mrs Horsfall before me. Senior Constable Hooper was not available and therefore the Applicant has not had the opportunity to test his evidence. Under cross-examination the Applicant was unable to recall the details of the phone call. However, the Applicant denies that he attempted to intimidate Ms Horsfall.
On the evidence before me I am not satisfied that the conduct occurred as alleged. It seems that the Applicant had a positive relationship with Mrs Horsfall. The evidence suggests that he went to her aid on the night of 27 November 2011. I am not satisfied that the Applicant attempted to intimidate Ms Horsfall.
The Respondent relies on the COPs entry with respect to the dog incident. There is no evidence from either the Applicant’s neighbour, the ranger, or any police officer in relation to the incident. In contrast, the Applicant has given sworn evidence and has been cross-examined in relation to the incident. I accept that evidence.
I am not satisfied that the Applicant acted irresponsibly in relation to the dog incident. It is likely that the Applicant said that he thought that the dog should be put down but I am not satisfied that he threatened to use violence against the neighbour or against the dog. I make no negative findings in relation to the Applicant’s conduct on that occasion.
The Respondent relies on the COPs entry with respect to the air compressor incident. There is no evidence from either the owner of the air compressor or any police officer in relation to the incident. In contrast, the Applicant has given sworn evidence and has been cross-examined in relation to the incident. I accept that evidence.
The Respondent raised the issue of the Applicant giving evidence of matters that have not been recorded in the COPs database and suggests that this indicates recent invention by the Applicant. I do not accept that submission. The Applicant was not the author of any of the COPs database entries and he cannot be responsible for what is or is not recorded in the COPs database. There is no evidence before me that suggests the COPs database entries are a complete record of a particular event.

Where no evidence is presented to contradict the Applicant's evidence, I have no basis on which I could conclude that the Applicant's evidence is false. No negative implications can be drawn from the failure to record matters in the COPs database.
I make no negative findings in relation to the Applicant’s conduct in relation to the air compressor incident.
In relation to the Applicant’s driving record, the record speaks for itself, and the Applicant accepts that it is a relevant consideration. The respondent relies on views that I expressed in the matter of O'Brien v Commissioner of Police.
Mr Lowe submitted that the circumstances of the Applicant’s record can be distinguished from those in O'Brien v Commissioner of Police. I agree with that submission. While I am of the view that the Applicant’s driving record does him no credit, I do not consider that it is such that it should prevent him from holding a firearms licence.
I note the decision in Lee v Health Care Complaints Commission and that it is accepted that the mere passage of time does not in itself demonstrate a reformation of character. In this case the Applicant has references that attest to his good character, and he has provided a sincere admission about the wrongness of his decision on 27 November 2011 in the context of gun safety and public safety. He has given evidence about what he has learnt from his experience and said under oath that he will not repeat the same behaviour.
I accept that the Applicant is not a person who is likely repeat the same behaviour.
On the evidence before me, it is my view that the Applicant is a fit and proper person to hold a firearms licence.
However, I remain concerned that the Applicant’s understanding of his obligations as a firearms licence holder is confused. There is evidence that the Applicant has recently completed a course in relation to the safe handling of firearms and I accept that my concerns might be purely as a consequence of his inability to articulate his understanding under cross-examination. As I have noted above, his evidence was clear that he regarded that storing firearms in a locked house as sufficient to satisfy the safe storage requirements of the Act.
I have set out the requirements in section 40(1)(a) of the Act above. Simply storing firearms in a locked house does not meet those requirements.
I have also set out above the answers that the Applicant provided in response to Mr Lowe’s re-examination questions. It is apparent from the Applicant’s answer to the question concerning the safe storage requirement that he had no difficulty in providing the correct information.
However, I remain concerned because of the contrast between the answers provided under cross-examination and the answers provided under re-examination.
In my view, the Applicant would need to take steps to remove any basis for this concern before I would be comfortable that there is virtually no risk to the public if he is to be issues with a firearms licence. This could be achieved by completing the course in relation to the safe handling of firearms again. The Applicant should be given the opportunity to take that step.
With the exception of the concern that I have expressed in relation to the Applicant’s knowledge of the safe storage requirements, I do not consider that there are any issues of fitness and propriety or the public interest that would prevent the issuing of a firearms licence to the Applicant.
In the circumstances, it is my view that the decision under review should be set aside, and the matter should be remitted for redetermination by the Respondent, taking into account that views that I have expressed above.
If the Applicant completes a course in relation to the safe handling of firearms successfully, I recommend that the Applicant’s application for a category AB firearms licence under the Firearms Act 1996 should be granted.

Order

The decision under review is set aside.
The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.

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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: 21 May 2024

Medium Neutral Citation:	Small v Commissioner of Police, NSW Police Force [2024] NSWCATAD 134
Hearing dates:	29 January 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is set aside. (2) The matter is remitted for reconsideration by the Respondent in accordance with the recommendations of the Tribunal.
Catchwords:	ADMINISTRATIVE LAW — firearms licence refusal — fit and proper person — public interest — criminal history — traffic offences
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs (1979) NSW 2 ALD 60 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Hunt v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 88 Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Lee v Health Care Complaints Commission [2012] NSWCA 80 McDonald v Director General of Social Security (1984) 1 FCR 354 Meacham v Commissioner of Police [2020] NSWCATAP 107 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA66; (1992) 110 ALR 449 O'Brien v Commissioner of Police [2022] NSWCATAD 259 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Tannous v Commissioner of Police [2011] NSWADT 116 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Category:	Principal judgment
Parties:	William Karl Small (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: T Lowe (Applicant) Solicitors: CDM Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2023/00296773
Publication restriction:	Nil