Sukhera v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sukhera v Commissioner of Police, NSW Police Force [2023] NSWCATAD 4

Hearing dates:

13 October 2022

Date of orders:

09 January 2023

Decision date:

09 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Fielden & Fielden v Commissioner of Police, NSW Police Force [2000] NSWADT 156

Grenfell v Commissioner of Police [2021] NSWCATAD 124

Hariri v Commissioner of Police [2022] NSWCATAD 5

Inquest into the deaths of John, Jack and Jennifer Edwards Coroners Court of New South Wales (Report 7 April 2021)

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

Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315

Livadaru v Commissioner of Police [2008] NSWADT 160

Manning v Commissioner of Police [2020] NSWCATAD 111

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:

Asad Ali Sukhera (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00189669

Publication restriction:

None

REASONS FOR DECISION

1. This is an application concerning the Commissioner of Police’s decision to refuse the application by Mr Asad Ali Sukhera (“the applicant”) for a category H Firearms licence made on 23 June 2022. On 14 July 2022, the applicant sought internal review of the decision. The internal review determined to affirm the 23 June 2022 decision. The applicant has filed an application in this Tribunal seeking external review of the Commissioner’s decision.

Introduction

2. The applicant, at the time of the hearing was 44 years of age. The respondent is the Commissioner of Police NSW Police Force (the “Commissioner”). The Commissioner’s delegate formed the view that it was not in the public interest for the applicant to be issued a Firearms Licence (the “Licence”). That decision was based on events regarding the applicant’s history of alleged domestic violence and control over his domestic partners and wives.

Background

3. On 27 February 2006, the applicant was issued a firearms licence. The licence was to expire on 6 April 2021. On 10 October 2020, the applicant’s licence was suspended. On 6 April 2021 the licence expired.

4. On 13 June 2021, the applicant made an application for the issue of an H firearms licence. The licence was refused on 23 June 2021. On 14 July 2021, the applicant applied for an internal review of that decision.

5. On 3 June 2022, the internal review was finalised and sent to the applicant. On 22 June 2022, the applicant lodged with this Tribunal an application seeking a review of the decision of the Commissioner to refuse the issue of an H firearms licence.

6. The applicant seeks a firearms licence so he can compete at his local shooting club.

7. The Delegate of the Commissioner refused the application for a licence on the basis that the applicant’s history of domestic confrontation is a cause for concern for the public interest. The Delegate reasoned that there could be an increased risk to public safety if firearms were in the applicant’s possession. This is based on a history about the applicant’s character and in particular his lack of self-control.

8. The applicant reasoned that he had previously held a firearms licence for several years and that reports made against him, and provided to the police, relating to numerous domestic incidents have not been proven. Despite this, the internal reviewer on behalf of the Commissioner reasoned that the history of the applicant’s numerous domestic incidents demonstrates a pattern of alleged behaviour that is inconsistent with the principles and objects of the Firearms Act 1996 (‘the Act’).

9. It is for these reasons that the Commissioner has refused the application for the applicant to be issued an H firearms licence.

Jurisdiction

10. The Notice of Refusal was issued under the provisions of the Firearms Act 1996 - s 11(7). Relevantly, s 11(7) provides:

…

(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.

….

11. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal to issue a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or Licence (other than a Licence in respect of a prohibited firearm) to the person,

(b) …

12. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

13. The Tribunal has jurisdiction under the Firearms Act as noted at [11] above.

14. An application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

15. The applicant filed his application for administrative review on 22 June 2022. This was within 21 days after the Internal Review decision had been made on 3 June 2022. I am satisfied that the application has been filed within the time.

Issues for determination?

16. The issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

17. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s evidence

18. The applicant filed a bundle of documents on 18 July 2022. The same bundle was also filed on 16 August 2022. The bundle includes the internal review decision and references in support of the applicant’s good character, together with the result of an application for apprehended domestic violence order to protect his wife dated 15 April 2021.

19. The applicant was cross-examined and made oral submissions at the conclusion of the hearing.

Respondent’s evidence

20. The respondent relied on documents filed pursuant to s 58 of the ADR Act on 26 July 2022 and 7 September 2022. The respondent filed written submissions and made oral submissions at the conclusion of the hearing.

The applicant’s oral evidence

21. The applicant was sworn. He said he had been a member of the Auburn Shooting Club for 6 years. Allegations concerning assault, control and domestic abuse against his wife and other female partners, relied upon by the Commissioner are untrue. He said there is no relevant incident outside of the matter that was heard before the Parramatta Local Court on 15 April 2021 concerning his wife.

22. The applicant said he disagreed that there was any serious issue with anger outside of sometimes there being a disagreement within a family relationship. He said he was trying to be the best person he can be and since the matters that were brought before the Local Court were withdrawn, he remains happy living with his family.

23. The applicant said that the Licence is to be used for sporting and the gun is always kept in possession at the club in the club safe. When using a gun it is always used under supervision.

24. In cross-examination the applicant agreed that he had had a provisional firearms licence for 1 year in 2014. He does not own a pistol and he cannot take firearms when he uses them at the club.

Relationship with Ms A

25. The applicant was born in Pakistan and moved to Australia in August 1997. He denied that he was married before 2008, however, when asked about an argument with a previous partner, Ms A, (a pseudonym) in August 2008 he said he married her in Pakistan in 2006. The marriage was an arranged marriage. The applicant went back to Pakistan in 2006 from Australia for the purposes of getting married. The applicant and Ms A had a child from the marriage.

26. In the s 58 documents is a COPS event record relating to an incident on 4 September 2008. Ms A attended the Glebe Police Station to provide police with a statement and request an AVO in relation to a matter that occurred on 24 August 2008. Ms A said that the applicant is controlling her life and sometimes does not allow her to leave the home. The applicant has intermittently made threats against her for the past year.

27. On Sunday, 24 August 2008, at about 10.00 p.m., Ms A is recorded to have told police she was at home with the applicant and their child. They were sitting on the couch in the lounge room and the applicant became angry because of a disagreement he had with Ms A’s father in relation to the sale of property in Pakistan. The applicant is alleged to have said to Ms A “I will finish you. I will kill you and all of your family, here and in Pakistan.” The applicant continued to yell and verbally abuse Ms A. He said that she should return to Pakistan and she was not allowed to take their child with her.

28. Ms A left the home with the child and went to a phone booth in the street to call the police. While waiting to use the phone booth her cousin approached her who was also at the home and said it was safe to return to the home as the applicant had left. Police attended and spoke to her. She said she did not want to take the matter further. It is this incident which Ms A informed police that she was scared of the applicant and an urgent AVO was taken out by the police to protect Ms A.

29. In cross-examination the applicant denied the seriousness of this event. He said there was no argument just a dispute about parents overseas. He did not deny the incident occurred. He denied any allegation that he had tortured Ms A. The applicant denied the argument was about their child returning to Pakistan and that his then wife was free to do whatever she wished. He denied that he restricted his wife from leaving the home and that he controlled her. He also denied yelling and becoming angry towards his wife.

30. The applicant said he does not remember if he left the apartment for 3 nights as set out in the COPS report. However, he thinks he may have gone to his friend’s home for 1 or 2 days. After the Interim Apprehended Violence Order was put in place he said that the relationship with Ms A was not renewed and she went on to live her own life. The applicant said he moved on with his life. The applicant divorced in probably 2009 in Pakistan and he believed his wife moved away from Australia a year after the AVO lapsed. The applicant has not spoken with Ms A since the AVO. He has minimal contact with his child through his parents.

31. It is difficult to make positive findings about the incident, without Ms A being available to give evidence. However, the applicant did not deny the altercation. He said he may have gone to is friends house and that he and his then wife has a dispute bout property involving Ms A’s father. For the reasons below, I have found the applicant not to be a reliable and truthful witness. I find on the balance of probabilities that the incident as reported by Police is more likely to have occurred in the way in which it was reported. I place more weight on the police records than I do the applicant. The applicant’s reported conduct is very similar to the conduct described by Ms B and his current wife Mrs S. The accumulation of similar incidences demonstrates a concerning pattern of behaviour by the applicant.

Incident involving Ms B

32. On 26 December 2009, police recorded allegations made against the applicant by an ex-partner, Ms B, including that he sexually assaulted her 2 to 3 times per week between 16 October 2009 and 14 November 2009. The police also attended a domestic dispute involving violent behaviour by both parties on 19 December 2009 at which it could not be established who was the aggressor and who was the victim.

33. In cross-examination the applicant agreed that he was in a relationship with Ms B after 2009. The slept in the same room but in different beds. He denied that he laid on top of her naked and began kissing her without her consent. He denied an allegation that he knew Ms B did not want to have sex before marriage and that he had said that marriage would occur so that they would have sex. He denied that Ms B said no when he was having sex with her and that any sexual activity was with consent of both parties. During the relationship Ms B said that she was pregnant. A short time later the relationship ended and the applicant has not seen the child and believes that Ms B may have miscarried.

34. The applicant recalled an argument occurring on 20 December 2009. He said he was injured by Ms B but does not know what made her aggressive towards him. He denied that he pushed her into a bench and was screaming at her. He also recalls Ms B threw a glass or a stick or something at him.

35. Again, it is difficult making positive findings about the events recorded in the COPS report. Minimal weight can be attached to these events. At best, the circumstances evidence a domestic disturbance where Ms B threw a glass at the applicant and caused him injury and possible physical violence by the applicant and Ms B. Given my findings about the applicant’s candour and reliability, I have some doubts about whether the applicant was an innocent party in argument. However, this is difficult to establish either way.

The incident involving the applicant’s wife Ms S

36. In December 2009, the applicant’s family began discussions with him about an arranged marriage with his current wife Mrs S. The applicant and Mrs S were married in Pakistan in 2010. This is 8 weeks after the relationship with Ms B ended. The applicant and Mrs S have 4 children aged 11, 9, 7 and 1½ years.

37. After the applicant and Mrs S were married, his wife moved to Australia in about 2013 on a visa. Between the time they were married and her moving to Australia the applicant travelled back to Pakistan to visit her and that is when they started having children.

38. It was put to the applicant that after he and Mrs S were married, he became physically abusive towards her when she moved to Australia. The applicant denied this to be the case. In a statement to police on 17 October 2020 Mrs S alleged following:

‘Since moving to Australia, the applicant had been verbally and physically abusive towards her until 2018; that, in an incident in September to October 2018, [Mrs S] was pregnant and the applicant had been verbally and physically abusive to his wife in front of their children; the applicant had been very controlling throughout the marriage, including since the incident in 2018 by controlling her access to money and her use of her mobile phone; and that [Mrs S] is scared of the applicant and does not want to have any contact with him.’

39. On 19 November 2020, Mrs S, for unknown reasons, made a further statement retracting some of her claims she made against her husband. She states that she was exaggerating, that she was not scared of him, and in fact they were happy as a couple.

40. In cross-examination the applicant said that his wife is not controlled by him and she has the right to leave the house and do whatever she wishes at any time. He denied that he would not allow her to have a mobile phone and controlled all of the money except her being able to buy groceries for the family.

41. In body worn video which was tendered in part of the Commissioner’s evidence and also in the statement made on 17 October 2020, Mrs S said that her mobile telephone was password protected and she could not call out. The applicant said this was not true and she could make calls when she wished. He agreed that he had arranged a mobile telephone for her but denied that she was limited in being able to use the phone. In cross-examination the following questions and answers took place:

Q   When you were interviewed by the police on 26 November 2020 in relation to an application for an Apprehended Violence Order to protect your wife, you were asked about you slapping your wife and that you were harsh that you took her mobile telephone from her and used a lock and that she could only talk to your family. You told police that you put a lock on her phone and she could only talk to your family. That appears to be a lock on your wife’s phone?

A   Yes, I mentioned to police this was a matter for a moment and then I gave her the lock, passcode back and said this is not ethically right to be engaged with somebody else.

Q   So the incident that she was chatting with a person in Pakistan?

A   More to the text messages.

Q   What was concerning about her talking to another man?

A   In a relationship with somebody you do not feel good if she is talking to somebody else.

Q   Because [Mrs S] is in a relationship with you she cannot talk to other men?

A   She can, but it is not something to hide.

Q   Why did you lock the phone?

A   I did not lock permanently it was just for a few hours.

Q   When did you put the phone the lock on her phone?

A   A long time back, when she moved to Australia after 2013 somewhere.

Q   Between 2014?

A   Roughly yes.

Q   How did you stop her calling other people?

A   I changed the password and given the password back.

Q   So you made it so she could not use the phone at all unless the password is used?

A   Yes the same day.

Q   You were trying to exert control over her?

A   No. If I am in a relationship which is not ethically right, there was nothing to be forceful and I like to control anything it’s just an honest relationship when you are together.

Q   Why did you think you had the power to stop her using the phone/

A   I didn’t have the power.

Q   You did though?

A   Yes maybe just on that day, husband and wife’s emotional feelings for each other, that was the matter of the moment.

42. In the ERISP the following questions and answers took place between the applicant and the investigating police officer:

‘Q93   So at no stage have you slapped your wife, have you laid a hand on your wife?

A   In past, I don’t remember the year or date, definitely not in this property, the property was, I had once, like, been, I mean, harsh, verbal. Because I found out she was chatting to a guy in Pakistan

Q94   Yep?

A   And on her mobile phone. And when I found out the messages and things, I just took her mobile phone from her and I just put a lock. I said, like, you are only allowed to talk to your family, if you’re married with me, I can’t, like, its unethically, and things like that, you’re calling somebody in Pakistan.

Q95   Yeah?

A   As a different man, so which she was shocked that I found out. And that was the only thing.

Q96   So you have control of her phone?

A   No, I don’t have that. She has the phone all the time.

Q97   Yeah.

A   In her possession.’

43. I do not accept the applicant is an honest and reliable witness. He was asked questions in cross-examination about the locking of his wife’s phone to which he denied. His evidence as in direct contradiction to the interview that was conducted by police. When this inconsistency was explained to the applicant he maintained that he had only locked his wife’s phone on one occasion. However, the practice of controlling his wife is similar to the allegations, which he also denied, in relation to Ms A.

44. I have viewed the body worn video in which Mrs S gave a statement to police and also the statement dated 17 October 2020. I accept and prefer the version of events from Mrs S both in the body worn video footage and the statement that the applicant was controlling and did lock her phone. I do not accept that the applicant locked her phone for a day and find that it was more likely than not for a much longer period of time as originally alleged by Mrs S.

45. I also find that the applicant agreed with police that he had slapped his wife before.

46. In 2018, Mrs S also alleged that the applicant had an argument with her about not being able to carry and lift a box of groceries into the apartment. She said that the applicant grabbed her and pulled her into the bedroom. He used a belt to tie her up and slapped her face, ripped her shirt off and was yelling at her. The allegation is that the applicant’s brother and cousin came to the home to assist with the argument that had occurred. The applicant said that he recalls his brother and cousin coming but does not exactly remember them coming into the house. I reject his evidence in this regard as it is in direct contradiction to his family evidence set out below.

47. Mr Ali Ahmed, the applicant’s brother, gave a statement to police on 17 October 2020. He states:

‘I remember in September 2018, my brother called me and said where are you, I was in the city at that time driving. I said to him is everything okay, he said just come when you come, I will tell you what happened. I went to my brother’s house and saw my brother and his wife [Mrs S] there.

When I went there, I saw [Mrs S]sitting on the sofa crying and I heard them arguing. I asked [Mrs S] what has happened. She said she wants to go to Pakistan. I said let’s wait for my cousin Mohamed Ali to come and join us as he is a senior person in our family. When he arrived, we all sat down and had a conversation. During the conversation, [Mrs S] said whilst crying that she wanted to go to Pakistan. I asked her if she wants to go to Pakistan, we can talk to Asad and make him agree and let you travel to Pakistan. We later talked with Asad and told him let [Mrs S] go to Pakistan. He later agreed for her to go. I am not sure why he did not want to let her go.’

48. In a statement of Mr Mohamed Sukhera, the applicant’s cousin, dated 17 October 2020 he confirms attending the house and that the applicant and [Mrs S] had had an argument about issues in Pakistan.

49. In the statement of [Mrs S] dated 19 November 2020 the following is relevant. She states:

‘7   At the time of making my original statement I was in the early stages of pregnancy and my husband was away. I was upset at my husband for going to Griffith with his friends and I exaggerated what happened. Now I am further along with my pregnancy and I have googled the words in my statement and realised I exaggerated on things.

I did not like in that statement and I am not going to lie in this statement.

…

In paragraph 9 of my original statement I said that my husband was verbally abusing me, however what happened was they were both verbally abusing each other; however, he was becoming more aggressive with me.

In addition, I wish to add that during this time we both engaged in a physical altercation, I do not remember who started to become physical because it was two (2) years ago however we were both physically assaulting each other. Since I am a woman and my nails are longer, he received scratch marks on both hands, so he started pushing me.

Our apartment is very small, the scratch on my elbow in the pictures is from him pushing me and my elbow hitting the wall. I think he only pushed me once. He held my hands with his own hands, and he was saying to me that if I was going to use my hands, he was going to tie them up. I told him I wouldn’t do it and then he let my hands go.

10   The bruises on my hands and arms were from when he was holding my hands. He held them for quite some time, I am not sure how long he held them for. It did hurt when he was holding them, he was holding them right.

…

12   I know that my children told police that they saw my husband tie me up with his belt. The children were in the lounge room and they could hear us fighting, they heard my husband say that he would tie my hands up, but they never saw anything like this happen. …

17   In my original statement in paragraph 21 I said that I am scared of my husband, I am not 100% scared of my husband and I want to stay with him for the sake of my children. I still want him to manage his anger because he has anger issues. In addition, my husband does respect me.

18   In addition I stated I did not wish to have any contact with him, for him not to be able to come home and that I did not want him to be able to come near me, this is not true. I need my husband around and I do want him to come home. Since the incident we have not had anything like this happen again and I am not scared of him. We have gone on holiday since the incident and we are happy.’

50. It is also important to note in the statement made by [Mrs S] on 17 October 2020 the following was said:

’19   Since the incident in September 2018, Asad has been very controlling of me. The behaviour continued like it had been before, he stops me from talking to who I want to talk to, controls my access to money and the use of the mobile phone he gave me.

20   I want a respectful relationship with my husband, and I want to stay married to him if he is respectful. My children are very attached to us and they wouldn’t want us to separate.

21   I am pretty scared of his anger but for the sake of my children I will stay in a relationship with him. I want to manage his anger for us and to have a normal and healthy relationship. The children need me and my husband. He is alright with his children, but he does not respect me much. I do not want to have any contact with him, and I do not want him to be able to come home or near me.’

51. In the police brief are photographs of significant bruising to [Mrs S] which is consistent with the statement she gave to police.

52. In a statement of Uzma Sukhera, the wife of the applicant’s cousin, dated 17 October 2022 she states as follows. In September 2020, the applicant called Ms Sukhera’s husband to come to his home because he had ‘problems with his wife.’

53. When Ms Sukhera and her husband attended the home she saw [Mrs S] crying and shouting. I asked them what happened and they both blamed each other for their actions. [Mrs S] said to Ms Sukhera “He is bad to me, he is always treating me bad using abusive language.”

54. Proceedings were brought against the applicant in the Local Court at Parramatta. The applicant was charged with assault occasioning actual bodily harm in a domestic related incident between 1 September 2018 and 31 October 2018 and take or detain a person with intent to obtain advantage. On 15 April 2021 the charges were withdrawn and dismissed and the Apprehended Violence application to protect the applicant was also withdrawn and dismissed.

55. It is evident that in 2018 the applicant and [Mrs S] had a domestic violence related incident at their home which involved their children and the police. Despite the charges being withdrawn and the Apprehended Violence Order also being withdrawn, I am satisfied based on the evidence that it was more likely than not the applicant did assault his wife. I have also viewed the body worn video in which [Mrs S] presents as being tearful and frightened of her husband. Her statement on 17 October 2020 and the body worn video is evident in my mind of the fear she held at that time concerning her husband’s anger. I am not satisfied that even after [Mrs S] retracted some of her statement in November 2020 that she is no longer scared of her husband. This is because she refers to his outbursts of anger and wanting to maintain her relationship for the sake of the children.

56. As set out above, I have found the applicant as not an honest and reliable witness and in my view he was putting a gloss on his evidence so that he would appear in the best light with respect to these proceedings.

57. Even with [Mrs S] not being able to give evidence, the applicant was ablet to respond to the allegations put to him. I give moderate weight to the allegations concerning [Mrs S].

Character references

58. I have considered the character reference provided by Mr Mohamed Ali Sukhera, solicitor, and Mr John McKenzie, Secretary of the Castle Hill RSL Pistol Club. The report from Mr Ali Sukhera appears to be related to employment and I give it no weight as it does not refer to the various incidents which the Commissioner relies upon in refusing a firearms licence.

59. The reference of Ms John McKenzie, dated 12 July 2021, I give nominal weight as it refers to the applicant’s demeanour and character whilst at the pistol club. However, it does not refer to the incidents which are for my consideration in this matter.

Applicant’s submissions

60. The applicant submitted that he is a fit and proper person to hold a firearm. He said all of the allegations that were made were “just domestic violence” and the allegations were wrong. The applicant’s submissions do not give me any confidence that he has insight into his conduct, his behaviour and the serious domestic violence related incidences between his current wife, former wife and girlfriend. This is a particular concern given the protective nature of the Tribunal’s jurisdiction in assessing risk to the public and others in relation to whether the applicant is granted a Licence.

The submissions of the respondent

61. The Commissioner submits that a great deal of the applicant’s evidence is uncorroborated. He has not called his wife [Mrs S] and the Tribunal can conclude that her evidence would not have assisted the Tribunal. I make this inference.

62. Each of the applicant’s three partners or wives have made complaints about him in a domestic setting, including violence, abuse, and coercive control, dating from 2008, 2009 to 2018. The Commissioner submits that the recent allegations of [Mrs S] are particularly significant. The Tribunal can be confident and conclude that the applicant controls her life and that control included whether she leaves the house, who she speaks to and when she leaves the home whether she can use a mobile phone. The Commissioner submits that domestic violence matters are prevalent and of significance in that they are usually in the form of harm and oppression and matters of real concern to the public because of the nature of what can occur. Reference was made to the coronial findings by a Coroner in New South Wales concerning the death of two children in a domestic related disagreement where the perpetrator was granted a firearm and in turn turned the weapon on his children. My attention was drawn to a concluding comment by Mrs S to the police about one of the reasons for her retracting her complaints where she said in her statement “Who is going to help me pay the rent if my husband is taken away.” This is instructive the Commissioner contends about the reasons why [Mrs S] withdrew the allegations of assault and fear concerning the Apprehended Violence Order application. The Commissioner submits that the family members’ statements in the criminal proceedings in 2018 support the 17 October 2020 statement from Mrs S and her statements made in the body worn video. I accept these submissions.

63. Of particular concern is the reliability of the applicant’s evidence. In that regard the applicant denied almost everything that has occurred as contained in the COPS event records concerning his past three relationships and most recently with his current wife. He told the Tribunal that his wife had freedom to use her mobile telephone and that he denied controlling her. However, when cross-examined he agreed that he did lock the phone and did control her telephone. The ERISP is also important because the applicant denied that an argument occurred between him and his wife. The applicant’s evidence today is inconsistent with that interview in that he said an argument did occur.

64. The Commissioner contends little weight should be attributed to the references attached with the application. This is because they do not refer to the previous allegations of domestic violence and assault. I have formed a similar view which is set out above.

65. The Commissioner, therefore, submits that the correct and preferable decision, having regard to the applicant’s history of domestic violence, is that it cannot be in the public interest for him to hold a firearms licence.

66. The decision under review ought to be affirmed.

My consideration

67. The decision under review is based upon the Commissioner’s contention that the applicant having access to firearms would be contrary to the public interest. Further, the applicant cannot be trusted to have in his possession a firearm without danger to public safety, including his own safety and it would be against the public interest for him to possess and use a firearm.

Public interest

68. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Act identifies a purpose to deal with public safety at s 3(1)(a) of the Act.

Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety:

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms…

69. The Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed:

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. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or Licence as irrelevant considerations.

70. When reviewing these decisions the Tribunal has determined that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered - see Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

71. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

72. Cases often cited include: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In Ward v Commissioner of Police, NSW Police Service Deputy President Hennessy referred to the public interest at [27]-[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. ….

73. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, the Tribunal said, which I adopt:

[31] In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

[32] The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

[33] The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

74. As noted in Commissioner of Police v Toleafoa [at 33] the 'public interest' is:

…

33. The 'public interest' allows, we consider, for 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

75. The applicant has been the subject of complaint from three unrelated women about his controlling, violent and verbally aggressive behaviour toward women. This is of particular concern.

76. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that 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”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. The notion of “virtually no risk” should be taken into consideration with some caution.

77.  In Manning v Commissioner of Police [2020] NSWCATAD 111, Senior Member Walker placed significant weight on the interim domestic violence order on the Applicant, even though the common assault charges related to the domestic violence incident were withdrawn. He stated at paragraphs [51] and [62]:

[51]   The applicant was made subject to IAVOs for the purpose of protecting his wife and children, which were amended (by deletion of the reference to the children) and ultimately withdrawn on 7 June 2019 when the common assault charges were withdrawn. Although the two counts of common assault (domestic violence) arising from the incident were withdrawn as a result of Mrs Manning’s not attending court, the episode is a serious matter that must be taken into account when assessing the applicant’s fitness and propriety. Victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions, and it is possible that she did not attend court for that reason. It is also possible that Mrs Manning may have opted out of the prosecutions in the hope of salvaging the marriage, as they have three children. There is, however, no direct evidence from either spouse on that point or on any other matter.

…

[62]   Taking a balanced view of risk to the public, there are real grounds for concern in this matter. The most significant factor in this case is the nature of the domestic violence incident involving the applicant and Mrs Manning. Any involvement of a firearm in a domestic argument, whether it is pointed or brandished or not, is a matter of serious concern ...

78. The Applicant’s interest in holding a firearms licence is, primarily for the enjoyment of shooting. He has been unable to pursue those interests as a consequence of the refusal to grant him the Licence. Private interests, however, are not the only matters to be taken into account. The interests of the whole community are matters for consideration.

79. The Applicant has been the subject of many allegations regarding domestic violence. However, despite being charged in one instance, he has not been convicted in relation to any of those allegations. There are no AVOs in place. The Respondent nevertheless maintains that the Applicant’s conduct could amount to an offence of assault and also intimidation.

80. In relation to the allegations concerning Ms A, the alleged events occurred many years ago. However, the allegations made by Ms A are very similar to the allegations made by the applicant’s current wife, particularly the use of coercive control, verbal and physical outbursts. They in my view establishes a pattern of misogynistic attitudes towards women and the use of control and fear, by the applicant.

81. In the circumstances I accept that the version of events that Ms A gave in August 2008 is probably an accurate account of the incident insofar as it asserts that the Applicant threatened to harm her and insofar as she stated that she had fears for her safety or the safety of her children. I accept that she feared that the Applicant would actually do what he said he would do.

82. I am less certain that the alleged sexual intercourse, without consent, with Ms B occurred. These are extremely serious allegations and without substantial evidence and the ability to cross-examine Ms B and test her evidence, it would be unsafe to make positive findings in this regard. However, there is clear evidence that the applicant and Ms B were involved in a domestic dispute. This is because, which I accept, the applicant being hit with a glass thrown by Ms B and suffering a laceration to his head.

83. I accept that Mrs S was in a verbally and physically abusive relationship with her husband until 2018. This is corroborated in her statement of 17 October 2020 and the body worn vision statement where she is depicted as being tearful and scared of her husband when talking to police. I have placed little weight on the applicant’s explanation of the events of that incident for the reasons as set out above. I accept that the applicant has been very controlling throughout this marriage, including since the incident in 2018. This is because, I accept Mrs S’s version of events that she has been controlled in terms of her access to money and use of her mobile phone. I also accept that Mrs S is scared of the applicant, this is despite her recanting some of her statement.

84. I accept and adopt the findings of Senior Member Walker in Manning in that victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions. It is also possible that they do not attend court for that reason. This is applicable in this case. The evidence reveals that Mrs S for the financial protection of her family and to ensure the welfare of her children decided not to proceed with further criminal proceedings against her husband. In her statement on 19 November 2020, Mrs S said that her husband did not tie her up with a belt. This is inconsistent with the statement given by her eldest son to police and her original statement, which I accept on the balance of probabilities as more correct rather than her retraction. It is important to read the particulars of Mrs S’s statement of 19 November 2020. When she says, “I am not 100% scared of my husband” she qualifies that by saying “I want to stay with him for the sake of my children.” The use of the word ‘sake’ in my view qualifies her statement probably for the fear of repercussions as was discussed in Manning. Similarly, Mrs S makes reference to her not wishing to pursue legal proceedings for financial reasons.

85. The Administrative Decisions Tribunal in Fielden & Fielden v Commissioner of Police, NSW Police Force [2000] NSWADT 156 at 56 said:

‘Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.’

86. There remains a real concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. This concern arises form incidents of domestic violence that have resulted in significant harm to partners and members of a family from the use of firearms. A prominent and recent example of this is the death of Jennifer, Jack and John Edwards that resulted in the State Coroner’s Inquest finding on 7 April 2021 (Inquest into the deaths of John, Jack and Jennifer Edwards Coroners Court of New South Wales (Report 7 April 2021)).

87. I also accept that many domestic violence matters do not give rise to any proven charges and that is immaterial in the context of firearms licencing decisions (see Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60]).

88. I find if Mrs S had not withdrawn her initial complaint to police and retracted her statement, at least on the balance of probabilities, there is a likelihood the criminal proceedings would have been proved against the applicant. Without a criminal trial it is difficult to say if those proceedings would have been proved to the criminal standard.

89. It is clear that Mrs S made the decision not to proceed with her complaints against the applicant and as a result the charges and the AVO were withdrawn. Apart from her statement retracting her complaint, which I note can be read down, I have no evidence before me to explain why she chose to adopt that course. However, I adopt the comments by Senior Member Walker in Manning that are referred to above. It is likely that Mrs S decided to support the applicant because of her fears of repercussions both to herself, her family and her children and also in the hope that her marriage would continue and her children’s lives would be protected from a financial point of view.

90. Nevertheless, it is my view that weight can be given to the fact that she asked police to attend her property on or about 17 October 2020 and to give a statement to police on 17 October 2020. This is the case notwithstanding that the matter was not pursued.

91. While the references provided on behalf of the applicant are to some extent positive, there is no reference made to the allegations that are made against the applicant. For that reason I give little weight to the references.

92. It is clear that Ms A made the decision to not proceed with her complaints against the Applicant and as a result the AVO was withdrawn. I have no evidence before me to explain why she chose to adopt that course. I note the comments by Senior Member Walker in Manning that are referred to above. It is possible that Ms A's support of the Applicant was because of her fears of repercussions or she may have done so in the hope of saving the marriage. However, there may be an unrelated explanation.

93. Nevertheless, it is my view weight can be given to the fact that she asked police to attend her property on about 3 March 2019 and to make the statement that she gave on 20 March 2019, notwithstanding that the matter was not pursued.

94. The material before me supports the Commissioner’s contention that the Applicant has a propensity for aggressiveness and threats of violence and actual violence and coercive control over women. It appears that this has been the case since at least 2008. There is no evidence before me to suggest that the Applicant has taken steps to address his anger and past behaviour. 

95. In the circumstances I am satisfied that the issue of the Applicant’s propensity for aggressiveness and threats of violence and actual violence will probably remain an issue should domestic issues arise again. In my view, this poses a risk to the public should the Applicant be given access to firearms. That risk is not minimal, fanciful or theoretical.

96. I adopt the reasoning of Senior Member Montgomery in the decision of Grenfell v Commissioner of Police [2021] NSWCATAD 124 at [103] where he states:

[103] There is no suggestion that the Applicant has ever misused firearms or that he has ever threatened to do so. However, I accept that there is general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms. Taking a balanced view of the risk to the public, it is my view that there are real grounds for concern in this matter. The licensing regime 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. I cannot be satisfied that the risk to the public would be reduced to a minimum if the Applicant has access to firearms.

97. I find that it is not in the public interest for the Applicant to hold a firearms licence. Accordingly, the correct and preferable decision is to affirm the decision to revoke the licence.

Order

98. The decision under review is affirmed.

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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: 09 January 2023