Snow v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 139

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Snow v Commissioner of Police, NSW Police Force [2023] NSWCATAD 139

Hearing dates:

6 December 2022

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is affirmed.

Catchwords:

Administrative Law – firearms licence – safe storage – unlicensed firearm – public interest – fit and proper person - whether able to exercise continuous and responsible control over firearms due to health condition.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

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

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

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

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Jonathan Malcom Snow (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
HWL Ebsworth (Respondent)

File Number(s):

2022/00227629

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application by Mr Jonathan Snow (“the Applicant”) for review of a decision by a delegate of the Commissioner of Police, New South Wales Police Force (“the Respondent” or “the Commissioner”). The decision was to revoke the Applicant's Category AB firearms licence held under the Firearms Act 1996 (“the Act”).

Background

2. The background is not in dispute. The Applicant was granted a Category AB firearms licence in July 2015. The licence was renewed in September 2020 and was due to expire in September 2025.

3. In April 2021, the Applicant was charged with:

• one count of 'Licensee not store ammunition in restricted area as required';

• one count of 'Possess unregistered firearm not pistol/prohibited firearm-T2'; and

• two counts of 'Not keep firearm safely - not pistol/prohibited firearm'.

4. In relation to the first two charges, the Applicant received two conditional release orders without conviction for a period of 12 months ending on 27 June 2022. The Coffs Harbour District Court dismissed the third charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.

5. The Applicant's licence was revoked in December 2021 because of the Applicant's conditional release orders.

6. At the time of the revocation decision the Applicant was subject to a Conditional Release Order. That Order expired in June 2022. The Respondent accepts that the Applicant has not been convicted of any firearm offences.

7. The Applicant applied for internal review of the revocation decision, but no internal review was conducted. The Applicant has applied to the Tribunal for external review of the revocation decision.

The issue for determination

8. The issue in this case is whether the correct and preferable decision is to affirm, vary or set aside the Respondent’s decision.

9. The Respondent contends that revocation of the Applicant’s firearms licence is the correct and preferable decision, for the following reasons:

1. the Applicant contravened the Act and the Firearms Regulation 2017 (“the Regulation”);

2. the Applicant is not a fit and proper person to continue to hold a firearms licence;

3. it is not in the public interest for the Applicant to continue to hold a firearms licence; and

4. there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances.

The Tribunal’s Approach

10. 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 to either confirm the original decision, vary it, or set it aside and substitute another. 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: section 63 of the Administrative Decision Review Act 1997 (“the ADR Act”).

11. The Tribunal makes its own decision in place of the Respondent’s, and there is no presumption that the Respondent’s decision is correct.

12. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Respondent to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

13. 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.

14. The Tribunal must exercise its discretion in determining a 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 paragraph [23]. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act.

Applicable legislation

15. Section 9 of 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 by section 75 of the Act. The Tribunal’s jurisdiction includes review of a decision by the Respondent to revoke a firearms licence.

16. This application is made under section 75 of the Act and the ADR Act.

17. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the 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.

18. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(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.

19. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...

20. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issue of the licence would be contrary to the public interest.

21. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the Applicant has a genuine reason for possessing or using the firearm. The Applicant's application for a firearms licence nominated his "genuine reason" for a firearms licence as "'recreational hunting/vermin control". In particular, the Applicant stated that he lives on a property with numerous animals and is troubled continually by foxes and wild dogs.

22. Section 24 of the Act provides:

Revocation of licence

…

1. A licence may be revoked—

   (a)   for any reason for which the licensee would be required to be refused a licence of the same kind, or

   …

   (d)   for any other reason prescribed by the regulations.

   23. Clause 20 of the Regulation provides that the Commissioner ‘may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.

Public interest

24. As noted, section 11(7) of the Act provides:

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.

25. The Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. 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."

26. The 'public interest' allows issues going beyond the character of the Applicant to be taken into account. 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.

27. “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 'the 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.

28. 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.

29. 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 as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

30. 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 taken into account. 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.

Fit and proper person

31. The Respondent also contends that the Applicant is not a fit and proper person to continue to hold a firearms licence.

32. The Act places an emphasis on the need for licensees to be 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.

33. Fitness and propriety is a question of fact to be determined objectively, taking into account 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].

34. 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].

35. 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.

36. 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.

37. 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.

38. 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."

Material before the Tribunal

39. The Applicant relies on his own evidence as well as the statements of Delphine Copeland; Lachlan Copeland; and Marcia Lusted. He provided reports from his GP and neurologist. The Applicant also provided written and oral submissions.

40. The Respondent relies on the bundle filed pursuant to section 58 of the ADR Act as well as written and oral submissions.

The Respondent’s case

41. As noted, the Respondent accepts that the Applicant has not been convicted of any firearm offences. However, the Respondent contends that the Applicant’s conduct is relevant to the matter notwithstanding that he has no convictions. The mere fact a person escaped criminal conviction does not mean that they should therefore automatically escape an administrative sanction against their licence.

42. It is not in dispute that the two of the Applicant’s firearms were located in his safe loaded with ammunition. The Applicant also had an unregistered firearm in his possession and air rifle ammunition that was not stored in accordance with safe storage requirements.

43. The Respondent refers to a number of decisions which make it clear that it is the conduct rather than the conviction that is of concern to the Tribunal and that it is important to send a signal to licence-holders as to what conduct is unacceptable.

44. The Respondent submits that the Applicant contravened provisions of the Act that relate to the safety, storage and registration of firearms and that those provisions are enacted to promote public safety. The contraventions are therefore serious.

45. The Respondent further submits that the Applicant had kept his firearms loaded as a matter of convenience due to his multiple sclerosis. In those circumstances, the storage of loaded firearms was not a technical or inadvertent breach. The Respondent argues that the Applicant appears to have little understanding of the seriousness of the offences. She says that the seriousness of the wrongdoing is greater than the Applicant acknowledges, because he committed these offences knowingly. This undermines the Applicant's claim that he is fit and proper person to hold a licence.

46. The Respondent contends that in the circumstances, the Tribunal should not be satisfied that the Applicant is a fit and proper person for the purpose of section 11(3)(a) of the Act. The Respondent also contends that in the circumstances, the Applicant’s access to firearms would constitute an appreciable risk to public safety.

41. The Respondent also questions the Applicant’s need for firearms. The Respondent notes the Applicant’s claims that he had suffered loss from wild dogs and foxes, however it is also noted that the Applicant’s neighbour has a rifle and a firearms licence and may be able to assist the Applicant if required. In any event, the Respondent submits that the Applicant’s interest in having firearms must be subordinated to the public interest in maintaining public safety.

42. As is noted above, the Respondent expressed concern that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's domestic circumstances. This concern relates to the Applicant’s son however, the Respondent no longer presses that issue.

43. However, there is evidence that the Applicant is suffering from multiple sclerosis which affects his ability to reload firearms. The Respondent expressed concern that the evidence related to the extent of the Applicant's condition is insufficient to allow the Tribunal to be satisfied that there is virtually no risk to the public due to the Applicant's condition should he have access to firearms. The Respondent’s concern is that if the Applicant has 'difficulty with sensation and fine motor movement of the fingers', it raises doubts as to whether he would be able to properly, and safely, aim and discharge his firearms. Therefore, there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms.

44. The Respondent contends that in the circumstances, the Tribunal should conclude that the correct and preferable decision is to revoke of the Applicant's firearms licence and affirm the decision under review.

The Applicant's case

51. As noted, the Applicant was charged with a number of firearms offences. He received two conditional release orders without conviction for a period of 12 months and that period has now expired. Those orders related to charges in regard to possession of an unregistered air rifle and failure to correctly store ammunition. The Applicant notes that the charge related to the storage of loaded firearms was dismissed by the District Court.

52. The Applicant accepts that there was risk associated with his conduct but maintains that the risk was extremely low because the air rifle was old, broken, and unusable and all the firearms were stored in his firearms safe. He accepted that some additional air rifle pellets that were sitting on a chest of drawers. He recognised that his actions were irresponsible and potentially dangerous, and he expressed remorse for those actions.

53. In relation to the air rifle, he stated that he located the rifle when he pulled down an outbuilding to replace with a new shed. He did not dispute that the rifle would have been in the roof space for many years, but his evidence was that he had only recently discovered it. He said that he secured it in the gun safe until he got around to disposing of it correctly.

54. In his application for an internal review of the revocation decision he described his circumstances and need for firearms in the following way:

I live on a semi-rural property, have cows, sheep, alpacas, goats, a pony, emus and numerous other birds. We and our neighbours suffer from regular fox attacks and the occasional wild dog attack.

We have a multi-focused protection strategy. I have improved our fencing, we ran a 1080 course at our home for our local community, several of who now bait, we had the pest controllers visit and supply traps, of which I bought more, and we trap on ours and neighbouring properties. I decided I needed a firearm when on being disturbed late one night, by our gander ‘going off, I came face to face with a wild dog. I shouted and waved. It turned and snarled. I ran naked across the garden waving a garden rake!! Luckily It turned and fled, on researching I discovered I had taken quite a risk which would have multiplied had there been more than one. Further research and advice from my local dealer led to me acquiring a 223 and later a 22 for the foxes.

I have dealt with 2 wild dogs and several foxes. I have also euthanised several neighbours’ animals following wild dog attacks.

I was in the British Army for 12 years, seeing active service in both Northern Ireland and the 1st Gulf War. I know about guns, have regularly handled/used many different types and taught their safe handling for years. I kept my guns secure in a good gun safe at all times.

55. The Applicant gave evidence that he is suffering from multiple sclerosis and arthritis which affects his ability to reload firearms. He noted that

“[M]y fingers don’t work particularly well for ‘fiddly work’ at night so when the dogs are about, I keep a few rounds in the magazine of the 223 and in the feeding tube of the Winchester. This is not something I do very often but did so in this case because of the dogs. However, it is not a regular occurrence.”

56. The Applicant provided a certificate from his GP, Dr Moe Moe, who wrote:

I am Mr Snows GP, am fully aware of his multiple sclerosis diagnosis and see him regularly.

...

Mr Snow is in good health generally and his MS is stable and reviewed annually by Professor Barnett of Sydney Neurology.

I can confirm that I am aware of nothing, medically, that would affect his ability to work and carry out normal everyday tasks.

57. The Applicant said that Dr Moe was unable to provide a certificate in relation to whether the Applicant’s condition would affect his use of firearms.

58. The Applicant also provided a report from Professor Michael Barnett, a consultant neurologist. The report, dated 21 June 2022, is addressed to Dr Moe and (redacted to remove the Applicant’s personal health information) states:

I was very pleased to see Jonathan Snow today regarding his relapsing multiple sclerosis, treated with fingolimod. He has had no discrete neurological episodes. ... He reports no functional impairment at present. ...

... The MR imaging dated 13/4/2022 pleasingly showed no new pathology referenced to the prior study of 19/11/2020.

On examination today ... The remainder of his examination was normal. ...

I have made no changes to Mr Snow’s therapy.

…

59. The Applicant also provided copies of a number of character references that were prepared for the Local Court proceedings. While those references were not prepared for these proceedings, it is apparent that the authors are aware of the charges and nevertheless speak highly of the Applicant.

Consideration

60. I agree with the Respondent that the Applicant’s conduct is relevant to the matter notwithstanding that he has no convictions. That issue has been discussed in numerous decisions of this Tribunal and the former Administrative Decisions Tribunal. As has been often noted, the standard in administrative review matters is on the balance of probabilities and is a lower standard than that which applies in criminal matters.

61. The Applicant does not dispute the alleged conduct. I am satisfied that the Applicant’s conduct was as reflected in the charges brought against him. I agree with the Respondent that the provisions of the Act that were breached are intended to further the underlying principle of the Act to ensure public safety. The Act imposes strict controls on the possession and use of firearms, and it is important that licensees understand and comply with those controls and ensure the safe and responsible storage of their firearms.

62. In the circumstances of this matter, it is particularly concerning that the Applicant was aware of his obligations as a licensee but chose not to comply with those obligations.

63. The Applicant maintained that the risks to the public that was associated with his conduct was low. It appears that the Local Court and District Court agreed with this view. However, strict compliance with the Act is required. There is no scope for individual licensees to choose to ignore some provisions of the Act if strict compliance is inconvenient.

64. Nevertheless, on the evidence before me, I am satisfied that the Applicant’s awareness of these issues has been focused by the circumstances in which he has found himself. He understands his obligations, and it is unlikely that he will again ignore those obligations.

65. In the circumstances, I am not concerned that there are public interest considerations or fitness and propriety issues that should prevent the Applicant form holding a firearms licence.

66. However, I agree with the Respondent that the evidence before me in regard to the Applicant’s health issues is insufficient.

67. It is apparent that the main reason that the Applicant stored his firearms in a loaded condition was the difficulties associated with his multiple sclerosis and arthritis. It is not clear to me whether those conditions would impact on his ability to exercise continuous and responsible control over firearms. Clear evidence on that issue would remove any doubt about the extent of the impact.

68. Due to the insufficient evidence related to the extent of his multiple sclerosis and arthritis conditions, I cannot be satisfied that there is virtually no risk to the public if the Applicant is given access to firearms. Accordingly, the correct and preferable decision is to affirm the decision under review.

69. If the Applicant obtains medical evidence that shows that his multiple sclerosis and arthritis conditions would not affect his use of firearms in a way that would cause more than “minimal, fanciful or theoretical” risk to the public, and if he reapplies for a firearms licence, he may achieve a different outcome.

Order

1. The decision under review is affirmed.

**********

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

Registrar