Talbot v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 389

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Talbot v Commissioner of Police, NSW Police Force [2022] NSWCATAD 389

Hearing dates:

28 November 2022

Date of orders:

5 December 2022

Decision date:

05 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

1.   The decision under review is set aside.

2.   A category AB firearms licence is to be issued to the Applicant.

Catchwords:

LICENSING – firearms – alcohol-related driving offences -allegations of assault found not proven to criminal standard - conflicting accounts – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

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

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

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

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director General of Social Security (1984) 1FCR 353 at 357
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Shi v Migration Agents Registration Authority [2008] HCA 31

Stamatelatos v Commissioner of Police, NSW Police Force 

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Brett Talbot (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Turner Freeman (Applicant)
McCulloch Robertson (Respondent)

File Number(s):

2022/00175936

Publication restriction:

In addition to the Orders made by the Tribunal on 28 September 2022, I make the following order:
(1) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 28 November 2022 and the contents of paragraphs in these Reasons marked ‘[NOT FOR PUBLICATION]’ are not to be published or released to the Applicant, his legal representatives, or the public.

REASONS FOR DECISION

1. On 18 July 2021 the Applicant, Brett Talbot applied for a Category AB firearms licence. On 25 August 2021 the Respondent decided to refuse the application, on the basis that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant sought internal review of the decision but, as he was not notified of the outcome of that review within 21 days, it was taken to be finalised pursuant to s53(9) of the Administrative Decisions Review Act 1997 (ADR Act). Nonetheless, the Respondent proceeded to review the decision, and it was affirmed. The Applicant now seeks review by this Tribunal.

Relevant legislation

2. The general principles in relation to firearms licensing are set out in s 3 of the of the Firearms Act 1996 (the Act):

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) …

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

…

3. The Act, in setting out restrictions on the issue of licences, provides at s 11, relevantly:

…

(3) A licence must not be issued unless--

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace,

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

Evidence

4. The Applicant provided a statement dated 31 October 2022. He gave evidence and was cross examined.

5. The Applicant also provided an audio recording, but no transcript, of proceedings in the Newcastle Local Court on 10 and 11 November 2020. The parties agreed that I need only listen to the Magistrate’s (hour-long) judgment and that I would only go back to the evidence if I considered it necessary.

6. The Respondent provided material in accordance with s 58 of the ADR Act.

7. The Respondent also filed a confidential affidavit of Nicholas Kaluski dated 31 August 2022. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as “[NOT FOR PUBLICATION]”, and Orders are made accordingly: s 64 of CAT Act.

8. Both the Applicant’s counsel and the Respondent’s representative provided written submissions.

Tribunal’s approach

9. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

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

10. In the original decision and in the Internal Review the Respondent relied, in part, on the Applicant’s history in relation to drink/driving:

1. On 23 July 2006 the Applicant was stopped by Police for a random breath test. When he returned a positive test, he was arrested and his driver's licence was suspended. He was charged and convicted of drive with high range PCA, was disqualified from driving for 12 months and was subjected to an alcohol interlock order for 24 months.

2. On 27 July 2019, the Applicant was stopped by Police for driving a vehicle with no number plates. He was observed to be unsteady on his feet and he was subjected to a breath test which returned a reading well in excess of the legal limit. Police raised concerns that he was driving under the influence of alcohol with a child in the car. He was convicted of drive vehicle under the influence of alcohol and he was made subject to a Community Corrections Order for 12 months. He was disqualified or driving for 6 months his driver’s licence and was made subject to an alcohol interlock order for 24 months.

11. The Respondent also relied on the Applicant having submitted an application for a firearms licence on 18 July 2021 in which, notwithstanding the 2019 drink/drive conviction, in the Personal History section, answered “No” to the question: “At any time within the past 10 years, have you been convicted of a criminal offence in New South Wales or elsewhere?”.

12. The Respondent relied on these matters before me. In addition, the Respondent also relied on the Applicant having been charged, on 1 August 2019, with 3 counts common assault (DV)-T2 and one count assault occasioning actual bodily harm (DV)-T2, in relation to his daughter. He was also made subject to an Interim Apprehended Violence Order (IAVO). The Applicant defended the charges and was found not guilty. The IAVO was also dismissed.

The Applicant’s alcohol consumption

13. The Applicant did not dispute the evidence in relation to the 2 drink/drive convictions.

14. It was submitted on the Applicant’s behalf that in respect of earlier firearms licence renewal applications the Respondent was aware of the Applicant's 2006 drink/driving history and had raised no objection to him holding a firearms licence on that basis. While this may be the case, the 2006 drink/drive conviction was not the only matter raised by the Respondent in respect of the Applicant’s present application.

15. The Applicant had supplied a medical report from his GP, Dr Charles Markell dated 17 September 2021. There the doctor wrote that the Applicant “does not have a significant drinking issue that would preclude him from holding a firearms licence”. In the Internal Review the Respondent was critical of the report and gave it little weight. Although Dr Markell referred to the Applicant’s 2019 drink/drive offence he did not make mention of the Applicant’s conviction in 2006. Also, it was unclear with what information the doctor had been briefed. The Applicant said in his evidence that he did not know how the doctor came to the form of words he used in the letter. He said he showed the doctor the decision revoking his firearms licence. The Applicant said that he sees Dr Markell infrequently as he is not ill often, and, in any event, the doctor is “hard to get into”. He could not recall what he had told the doctor about his alcohol consumption, although thought he had told him he drank 2-3 drinks of mid-strength beer and tries to have 1-2 alcohol free days per week. He said in his evidence that he drinks at home, and not at the pub, and that when he drinks alcohol it is with meals. He drinks less nowadays because he now has 2 of his children living with him full-time and he is obliged to drive them to their various activities.

16. It appears that Dr Markell’s opinion was reliant on information provided to him by the Applicant. It is unfortunate that, notwithstanding the criticism in the Internal Review, the Applicant did not obtain an updated report from the doctor which may have addressed the perceived deficiency. Dr Markell's view, expressed in September 2021, however, is consistent with the Applicant’s account that he does not have a problem with alcohol - that the Applicant has had only two drink driving charges - some 13 years apart – is inconsistent with him having an ongoing problem with excess alcohol consumption which leads him to drive while under the influence of alcohol. I also consider that the Applicant’s added parental responsibilities, quite apart from being obliged to chauffeur the children to their activities, is also likely to have encouraged a reduction in his alcohol intake.

False statement in the Applicant’s firearms application

17. The Applicant’s evidence was that he was first issued a firearms licence about 30 years ago for the purpose of hunting and vermin control. That would have made him about 13 years old when he first obtained a licence. The Respondent claimed not to be in a position to confirm that assertion. I accept that the Applicant has held a firearms licence for many years and that he has applied for, and been re-issued, with a licence on a number of occasions since originally obtaining his licence.

18. When the Applicant was charged with allegedly assaulting his daughter his firearms licence was suspended and the licence expired before the charges were heard. After he was found not guilty on 11 November 2020, he applied for a fresh licence. The Applicant admitted that he answered the question "have you been convicted of a criminal offence in NSW or elsewhere at any time in the past 10 years" incorrectly. He wrote in his statement that he thought the question related to the assault charges (of which he had been acquitted). He said he did not know that the charge of driving under the influence (of which he was convicted on 11 February 2020) was a “criminal offence” and said he made an honest mistake in not referring to it; as it was a driving offence, he did not realise that he needed to disclose it.

19. The Applicant pointed out that in relation to the conviction in 2006 for drink/driving he did not declare that either, on any renewal applications for his firearms licences as he was unaware that he needed to do so, and the Respondent had raised no objection. I accept that the Applicant may not previously have declared the 2006 conviction. However, in the absence of a copy of those applications, it is unknown if the application forms were in the same form as the present one, that is, it is unknown if, at the time of re-applications since 2006, the Applicant was obliged to disclose the conviction.

20. I consider that it is reasonably plausible that the Applicant did not refer to his 2019 drink/drive conviction because he did not appreciate that a driving offence was a “criminal” offence. I also consider that his acquittal of serious assault charges in relation to his daughter was more likely to have been front of mind.

Allegations of domestic violence

21. The Applicant was charged with offences relating several alleged assault of one of his daughters over the weekend of 14-16 June 2019 during an access visit by all 3 of the Applicant’s children. No complaint was made to Police until 25 June 2019, despite the Applicant’s ex-wife finding "marks" on the arm and back of the younger child (Y) arm on her return home with her older sister (O) on 16 June 2019. The Applicant believed the complaint was made to Police was at the urging of the girls’ mother, but I do not understand there to be evidence to that effect.

22. It was alleged that the Applicant had “smacked” Y on multiple occasions such as to cause red marks on her upper left arm. The s 58 documents included the Police Statement of Facts, which outlined the Police case against the Applicant, and the circumstances of each alleged “smack”.

23. On 2 July 2019 Y gave a recorded interview with Police in the presence of her mother. O gave a recorded interview with Police on 16 July 2019, also in the presence of her mother. Y participated in a second recorded interview with Police, again in the presence of her mother, on 29 September 2019. In the second interview Y contradicted much of what she said in the first interview. She told the Police of further allegations of “smacking” (in relation to which the Applicant was never charged), but these were uncorroborated by O.

24. One of the charges related to the mark found on Y’s arm. There was evidence at the Local Court hearing that the mark occurred when she fell from a skateboard. The Applicant’s son (S) and also O said Y fell from the skateboard and hurt her arm.

25. One of the other charges alleged the Applicant hit Y when she would not get of bed on the Monday to go to school. The Applicant said the two girls had been fighting and O gave evidence that she had hit Y with a coat hanger, and that the Applicant did not hit Y with a wooden spoon or at all, as she had previously alleged. Y conceded that her sister had hit her with a toy.

26. The Applicant strongly denied the allegations and the charges were heard before the Newcastle Local Court on 10 and 11 November 2020. Y, O and S gave evidence, as did Y and O’s mother. In respect of the charge of assault occasioning actual bodily harm the prosecution did not establish a prima facie case, and the charge was dismissed at the conclusion of the prosecution’s case. The Applicant was found not guilty of all charges, which were dismissed, as was the IAVO.

27. Nonetheless, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences were not charged or, as is the case here, have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. I observe that notwithstanding the gravity of the allegations against the Applicant there was no contention before me that he was not a fit and proper person to hold a firearms licence: s 11(3)(a) of the Act.

28. Somewhat unhelpfully, before me no evidence was called in relation to the alleged offences, although it is understandable that the children were not called to recount what was alleged to have occurred. The Respondent relied only on the material with respect to the charges in the s 58 documents.

29. I listened carefully to the Magistrate’s remarks. In doing so I gleaned that Y was aged about 7 and O was aged about 9 at the time of the alleged offences, when they made their statements to Police and gave their evidence. The Magistrate found difficulty in reconciling the evidence. Sometimes Y and O gave conflicting accounts between their statements to Police and their evidence. Sometimes they gave conflicting accounts as between each other. S, who was aged 12, also gave evidence which was frequently at odds with that of Y and/or O. There were many inconsistencies, such as, in relation to the day of an alleged assault, where some were said to have occurred, who was present and the circumstances which had precipitated the alleged assaults. The Magistrate preferred Y’s account that she did not know how she had been marked, and in piecing together the conflicting accounts, considered she may have injured herself in a skateboarding incident.

30. The Magistrate considered the children to have been genuine and sincere before him and found O, and S, in particular, to be impressive for their ages. However, this did not overcome the vast inconsistencies in the evidence of the alleged assaults. Of particular note was that Y made no complaint to her mother on her return home about the multiple alleged assaults, and did not complain until she was asked by her mother about the marks. The Magistrate appeared to place considerable weight on this lack of spontaneity in making a complaint. On the whole, the evidence of Y and O was considered to be unreliable, as is often the case, the Magistrate observed, where children give evidence. The evidence of S and that of the Applicant was preferred.

31. I cannot be satisfied, even on the balance of probabilities, that Y was assaulted by the Applicant as was claimed.

Confidential material

32. [NOT FOR PUBLICATION]

33. [NOT FOR PUBLICATION]

Public interest

34. Before me, the Respondent again contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.

35. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the “public interest” is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety.

34. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conductof the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. The Applicant has no criminal record, other than in relation to his drink/driving offences in 2006 and 2019, and I have made some observations above in relation to the likelihood of the Applicant continuing to consume alcohol to excess in the future.

35. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

36. The Applicant wrote in his application that he seeks a further AB firearms licence for the humane destruction of larger vermin. He provided letters of authority to shoot on the properties of John Baglee at Linburn and Christopher Young at Weabonga, dated 30 August 2022 and 16 March 2022, respectively. Both wrote the Applicant was authorised to shoot foxes, rabbits and pigs. The Applicant said he was helping the farmers, and was not paid for engaging in vermin control. In his evidence he said that he would be “devastated” if he did not have a firearms licence to pursue his preferred recreation. Also, he had invested in “machinery”, by which he said he meant, the firearms themselves, his motorbike and trailer.

37. The Applicant’s private interests such as recreation and a desire to help farmers however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].

38. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]. 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 that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence. I do not perceive a real and appreciable risk in the Applicant holding a firearms licence.

Conclusion

41. The Applicant’s drink/driving record demonstrates some disregard for safety laws, however I observe that there have been only 2 offences, which were 13 years apart. I have also found there to be a reduced likelihood of the Applicant reoffending in this regard because of his increased parental responsibilities. I have placed little weight on the Respondent’s concerns in relation to the error in the Applicant’s application and have accepted the Applicant’s explanation for the error. Importantly, as observed above, I cannot be satisfied, on the balance of probabilities in relation to the alleged assaults.

42. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold a firearms licence.

DECISION

1. The decision under review is set aside.

2. A category AB firearms licence is to be issued to the Applicant.

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: 05 December 2022