Tannous v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 244

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Tannous v Commissioner of Police, NSW Police Force [2018] NSWCATAD 244
Hearing dates:	26 February 2018, 3 April 2018, 9 April 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	The Respondent’s decision is affirmed
Catchwords:	ADMINISTRATIVE LAW - FIREARMS – revocation of licence – conduct -– character - fit and proper - risk to public safety – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSW ADTAP 9 Cusumano v Commissioner of Police, New South Wales Police Service, [2001] NSW ADT 50 Davos v Commissioner of Police [2013] NSWADT 7 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Livadaru v Commissioner of Police, NSW Police Force [2008] NSWADT 160 Lynch v Commissioner of Police [2006] NSWADTAP 43 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Vella v Commissioner of Police [2003] NSWADT 91 Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	John Tannous (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: M Condon SC (Applicant) (26 February 2018)   Solicitors: The Australia Legal Practice (Applicant) Hunt & Hunt Lawyers (Respondent)
File Number(s):	2017/00251345
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material that was filed in these proceedings on a confidential basis and to those paragraphs of these reasons identified as [Not for publication]. That material is not to be published or released to the Applicant, without further order of the Tribunal. An individual’s name has been anonymised to ‘Mr X’ pursuant to s64(1)(a) of the CAT Act on the Tribunal’s own motion.

reasons for decision

Background

1. John Tannous (‘the Applicant’) was first issued with a Category AB firearms licence on 21 March 2014, and a Category H firearms licence on 5 January 2016, for the ‘genuine reasons’ of sport and target shooting, recreational hunting and vermin control. The Applicant’s Category ABH Firearms Licence No. 411160973 was due to expire on 16 October 2019.

2. On 30 January 2016 the Applicant was charged with the offences of ‘common assault’ and ‘assault occasioning actual bodily harm’ under the Crimes Act 1900 as a result of an incident which occurred on that date outside The Private Clinic in Surry Hills, which is a day surgery specialising in abortions. On 5 February 2016 the Applicant’s firearms licence was suspended.

3. On 10 October 2016 the criminal charges against the Applicant were dismissed after hearing at the Downing Centre Local Court. On 17 February 2017 the Commissioner of Police, NSW Police Force (‘the Respondent’) revoked the Applicant’s firearms licence pursuant to s 24(2)(d) of the Firearms Act 1996 (‘the Act’) and Clause 19 of the Firearms Regulation 2006 (the Regulations) on the basis that the Applicant’s act of violence on 30 January 2016 and his recorded police history of reacting with violence, intimidation and aggression towards others indicated a risk to public safety should he remain authorised to possess and use firearms.

4. On 10 March 2017 the Applicant sought internal review of the Respondent’s decision to revoke his licence. The request for internal review relied on the dismissal of the criminal charges and denied the Respondent’s allegations with respect to the incident of 30 January 2016, disputed that the Applicant had a ‘police history’, and stated that the Applicant had ‘nil antecedents and holds an impeccable criminal record’.

5. On 24 July 2017 the Respondent issued an internal review determination (‘the Reviewable Decision’), affirming the revocation on the basis of ss 24(2)(c), 24(2)(d) of the Act and Clause 19 of the Regulations. The Respondent relied on the Applicant’s conduct during the incident of 30 January 2016 and the police records of the Applicant’s conduct toward them and others in the context of his involvement in the tow truck industry, stating that these concerns overrode any positive inferences regarding his lack of criminal record and history of safe storage and use of firearms. The Applicant sought review in this Tribunal on 17 August 2017 of the Respondent’s reviewable decision.

6. The hearing took place over three days on 26 February 2018, 3 April 2018 and 9 April 2018. Witness evidence and cross examination included the Applicant and Paul Hanrahan for the Applicant, and Inspector Marco Carlon, Sergeant Daniel Hewett and Senior Constable Sara Ann Connery for the Respondent. Written evidence before the Tribunal, in addition to the application and documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (‘ADR Act’) included statements or affidavits by each of the witnesses, transcript from the Local Court hearings of 27 July 2016 and 10 October 2016, and video footage of the incident on 30 January 2016.

7. Relying on submissions dated 28 March 2018, at hearing on 3 April 2018 the Respondent sought an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (‘CAT Act’) to adduce certain evidence confidentially and in a private hearing, which the Tribunal granted. A confidential bundle of documents was consequently filed, and the Respondent made submissions regarding those documents in the absence of the Applicant and his representatives.

Legislation

8. The underlying principles of the Act are, relevantly:

1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and

2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.

9. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including (emphasis added):

(2)   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

(b)   if the licensee:

(i)   supplied information which was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii)   contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii)   contravenes any condition of the licence, or

(c)   if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(c1)   if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or

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

10. Clause 19 of the Firearms Regulation 2006 prescribes that:

19 Revocation of licence-additional reasons

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.

11. The Tribunal has jurisdiction to review the Respondent’s decision pursuant to section 75(1)(c) of the Act and section 30 of the CAT Act. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

12. Pursuant to s 38(2) of the 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. Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.

Fit and Proper

13. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) that:

“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. “

14. In the same case, Mason CJ stated at [63] that:

“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.”

15. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

16. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"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 evolving 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."

17. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

18. The Applicant’s fitness and propriety must be determined in the context of the applicable licence. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

19. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 the Tribunal stated that the fitness and propriety of a person must be considered in the context of, at all times, ensuring public safety:

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

The public interest

20. Section 24(2)(d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24(2)(d) of the Act and Clause 19 of the Regulations work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

21. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) (‘the ADT’) in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows:

The "public interest" is an inherently broad concept giving an appellant [the Respondent] 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 in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated 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.

22. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28 (‘Ward’), the ADT confirmed that these comments apply equally to the Act.

23. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated:

There is no guidance in the legislation in relation to how these directions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

24. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.

25. In Ward the ADT considered the fitness and propriety of Mr Ward to hold a firearms licence, stating at [27 – 28]:

"27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] would not pose a risk to public safety if he had access to firearms.

28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."

26. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.

27. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].

Consideration

28. The issues before the Tribunal are whether the Applicant is a fit and proper person to hold a firearms licence under the Act, and whether it is in the public interest for him to do so. Central to the determination of those issues is the Applicant’s character.

29. In his application for review, the Applicant stated as his grounds for the application:

The decision made is incorrect. I believe it is based on incorrect facts and analogy. Also I am a fit and proper person.

30. The Respondent filed a bundle of documents pursuant to s 58 of the ADR Act which included 15 COPS entries and 2 Facts Sheets dating from 2001 to 2016: E18193876, E12077358, E50756794, E16653840, E16927040, E54842996, E19545528, E20799553, E27142572, E29663574, E31995182, E45039345, E50684414, E60798363, E361023392, H20311958, H60462259. The Applicant’s written and oral evidence conflicted with various statements made in those COPS entries and Facts Sheets. In his affidavit of 6 November 2017, the Applicant addressed each of the 17 Police COPS entries and Facts Sheets included in the section 58 documents.

31. The Applicant objected to the s 58 documents filed by the Respondent on the basis of opinion and hearsay, submitting that they were not proof of their contents. Whilst this Tribunal is not bound by the rules of evidence, it must base its decision on 'probative evidence’. Probative evidence was tendered in the form of transcripts from the Local Court, statements by the Respondent’s officers, and video footage of an incident which occurred on 30 January 2016, which was the subject of one of the Fact Sheets included in the s58 material, COPS database entry H60462259. The evidence available to the Tribunal of the events of 30 January 2016 demonstrate the inaccuracy and misleading nature of the Applicant’s written and oral evidence, and are significant to the determination of this application.

32. The Applicant’s written evidence regarding the incident on 30 January 2016 was limited to the following:

H60462259

This matter occurred in 2016.

The matter was heard at Downing Centre Local Court.

After a 2 day defended hearing the Magistrate dismissed the charges and I was found “Not Guilty”.

The court proceedings had caused me and my family emotional stress and I would not wish to relive this matter again.

I deny the information stated in the facts sheet.

33. According to the transcript of the Local Court proceedings and the charge sheet included in the s58 material, the Applicant’s criminal charges arising from the incident of 30 January 2016 were dismissed by the Local Court on 10 October 2016 on an identity issue, because the Court was not satisfied beyond reasonable doubt that the accused was the individual in the video footage of the incident. I accept the transcript as probative evidence of the outcome of the Local Court prosecution as submitted by the Respondent, specifically that the charges were dismissed on an identity issue as opposed to the Applicant being found “not guilty” after a defended hearing.

34. The Applicant’s written evidence in these proceedings specifically made no admission as to his identity or involvement in the incident of 30 January 2016. His written submissions for the first day of hearing on 26 February 2018 did not admit that the Applicant was the individual in the video footage, referring instead to “the male” when describing the footage, in contrast to references to “John” or “the Applicant” elsewhere in those submissions. The Tribunal hearing was adjourned part-heard on 26 February 2018 because the Applicant was not available for cross examination. When the hearing resumed on 3 April 2018, with the Applicant present, the Applicant’s position had changed to the effect that his “identity was no longer in question”. When asked in cross examination on 3 April 2018 whether he hadn’t “acknowledged involvement in the incident prior to today”, the Applicant agreed. He then admitted that it was him in the video of the incident of 30 January 2016, but disputed the Respondent’s factual narrative of what had occurred.

33. Evidence from Inspector Marco Carlon and Senior Constable Sara Connery was to the effect that the Applicant had left the scene and changed his appearance between the incident and when the police arrested him, and that the complainant failed to comply with a subpoena to give evidence at the Applicant’s trial. On the basis of the probative evidence provided by Inspector Marco Conlon and the Applicant’s conduct in these proceedings as described at paragraph 34, I find that the Applicant had intended to maintain his denial of involvement in the incident of 30 January 2016 until the hearing of these proceedings resumed on 3 April 2018 and he was required for cross examination. I infer from that fact that the Applicant was willing to mislead the Tribunal about his involvement in the incident by omission or by false statement until that time, which is relevant to the Tribunal’s assessment of his character.

34. At hearing, the Applicant presented as a softly spoken witness with a deferential and apologetic demeanour. This was in marked contrast to the Respondent’s evidence of the Applicant’s dealings with Police and the public, tendered as the COPS entries and charge facts sheets.

Video footage

37. The disparity between the Respondent’s evidence of the Applicant’s conduct on 30 January 2016 as described in Facts Sheet H60462259, and the Applicant’s evidence of his conduct, can be resolved by review of the video footage of the incident. In Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72, Sackville AJA, Ward JA and Garling J agreeing, said, at [42]:

“…Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.” (Citations omitted)

38. The video footage of the incident on 30 January 2016 was taken contemporaneously from three separate visual perspectives, each of which is visually clear. CCTV footage from outside the clinic and Sony camera footage from across the road do not have sound. Footage from a private individual’s mobile phone, taken closest to where the incident occurred, has clear sound, but commences its recording later than the other footage. The probative value of the video footage, individually and combined, is significant.

39. In oral and written evidence and submissions the Applicant sought to diminish the impact and effect of the video footage by providing explanations, interpretations and context for his conduct. He refused to admit any wrongdoing, seeking to justify his actions in the video footage by deflecting responsibility to the conduct of others, including the victim Mr X, or by straight denial of facts clearly ascertainable from a visual and audio examination of the video footage.

40. The Applicant’s evidence was largely corroborated by Paul Hanrahan, who was also present at the incident and was the individual Mr X was conversing with at the time that the Applicant walked towards him. In evidence, Paul Hanrahan similarly sought to justify the Applicant’s actions by focussing on Mr X’s conduct as intimidatory and aggressive.

41. The following was not disputed:

1. The incident on 30 January 2016 took place outside The Private Clinic, a day surgery specialising in abortions.

2. An individual, referred to here as ‘Mr X’, was waiting outside for a patient of that clinic.

3. The Applicant was initially across the road from The Private Clinic, participating in prayers. Until the incident on 30 January 2016, the Applicant was a regularly attendee at prayers which were conducted in protest of The Private Clinic’s operations.

4. A verbal altercation had occurred between Mr X and other members of the prayer group, prior to the Applicant’s arrival on the scene.

42. On my review of the video footage, I find as follows:

1. In the Sony camera footage the Applicant is shown to walk across the road to where Mr X is talking to two individuals, one of whom is wearing a round cap and is taking out his mobile phone, while Mr X is lighting a cigarette. The Applicant physically stands close to Mr X. It is at this point that the mobile phone footage with audio commences.

2. At the beginning of the mobile phone footage, Mr X is heard saying “my girlfriend”. Person A behind the camera asks Mr X “Can you please just repeat what you said a moment ago?”, Mr X states “Nah I don’t need to repeat what I just said”, Person A says “c’mon are you too scared now mate… are you too frightened”, Mr X says “Nah I don’t need to repeat what I said you goose”.

3. While this conversation occurs, Mr X is shifting his orientation between the camera and the Applicant, while the Applicant moves closer to him. Person B behind the camera says “don’t aggravate things either”. Person A continues “Now he’s just said some really bad things, you’ve probably heard them” while the Applicant leans towards Mr X. Mr X is standing with his hands in his pockets while the Applicant has his hands out in the space between them at his chest height as they continue talking.

4. Mr X can be heard saying “I don’t need to” and then the Applicant says “Don’t try and be hard cunt” as he leans further into Mr X. Mr X responds “well you’re trying to be hard bro. What? Is that what you want to do, you want to punch on here?”, whilst taking his hands out of his pockets. At this point, Mr X’s arms are down by his sides and the Applicant is leaning into him, his left hand closest to the camera at chest height, formed into a loose fist with the thumb extended upwards.

5. The Applicant then says “Do you want to have a go? Is that what you want? Do you want to have a go?” while Mr X says “No, is that what I’m saying, is that what you want to do? Is that what you want?”. During this interchange Mr X remains in the exact same position with a neutral facial expression, while the Applicant leans his head in closer towards Mr X’s head, making threatening facial expressions, swinging his left arm back and then punching his left fist towards Mr X’s head while bringing his right arm up and punching Mr X with his right fist to Mr X’s face.

43. From my review of the video footage, I reject the Applicant’s evidence that he didn’t engage Mr X, that he wasn’t threatening, and that he wasn’t the aggressor in the incident to the extent that it involved the Applicant. I reject the Applicant’s submissions and evidence and Mr Hanrahan’s evidence that Mr X was the instigator or aggressor. I consider what Mr X did or did not say to the other people present prior to the Applicant’s arrival on the scene as irrelevant to the Applicant’s conduct, on the basis that the Applicant was not, on his own submissions “involved in what was going on” prior to him crossing the road. I reject the Applicant’s submissions that because Mr X took his hands out of his pockets, he thought Mr X was going to fight, because of the description of what occurred at 42(5) which occurred after that. I reject the submission that the video footage corroborates the Applicant’s version of events, and find instead that it conflicts with the Applicant’s evidence, and Mr Hanrahan’s evidence, but corroborates and supports the Facts Sheet in H60466259.

44. I also accept the Respondent’s submission that Mr Hanrahan’s evidence was not impartial on the basis of his relationship with the Applicant, who he agreed acted as his “protector” in circumstances where he is and was subject to threats as an organiser of protests outside the abortion clinic.

Other incidents

45. The Respondent submitted that the COPS entries recorded frequent situations and interactions with various Police, where the Applicant was belligerent and aggressive towards police undertaking their duties or where the Applicant had managed to become involved in a violent situation. The Applicant submitted in response that his lack of criminal convictions, dismissal of criminal charges, tow truck industry licence, and granting of firearms licences previously was inconsistent with the Respondent’s submission that he was belligerent in his dealings with police.

46. On my review of the subject COPS entries and Facts Sheets, I disagree with the Applicant’s submission that “there is no reason to doubt John’s version of events in relation to these matters”. Whilst I accept, to some extent, the Applicant’s submissions to the effect that the descriptions of events and opinions expressed within those COPS entries have not been thoroughly tested, the fact that they conflict with the Applicant’s version of those events provides the aforementioned reason to at least question the Applicant’s version. I agree that more probative evidence than just the COPS entries and fact sheets is needed to reject the Applicant’s submissions regarding the events described therein, in favour of the Respondent’s. That evidence consists of the Applicant’s oral and written evidence, the video footage of the incident of 30 January 2016, and the documents and information provided to the Tribunal in a confidential session at hearing.

47. The Applicant’s written and oral evidence with respect to the incidents described in each of those COPS entries does not deny that the incidents occurred. Rather, in written evidence he denies being “agitated”, denies being “uncooperative”, denies “not behaving in an orderly and civil manner”, denies swearing, denies being “aggressive”, or deflects responsibility to his company or other individuals at the scene to minimise responsibility for his involvement.

48. In cross examination regarding these incidents, the Applicant conceded that he was angry, although not aggressive. He explained that the tow truck industry, which was the context for the majority of the recorded events, was a “competitive business”, with disputes about territories. He agreed the industry involved aggression and threats, but stated that “since the Authority got involved” it had improved, as it “got rid of most of the criminals”. He denied experiencing much of the aggressive aspects of the industry himself. He agreed that he swore in general conversation and with his colleagues in the tow truck industry but denied ever swearing in conversation with the Police.

49. When questioned whether he got involved in fights, either personal or professional, the Applicant gave evidence that he was involved in “boxing training at the gym, but not outside”. Yet shortly after, he stated that there had been a “couple of times when I’ve held or wrestled with people to stop fighting”, including when he “grabbed the attacker’s arms” in the incident subject to COPS entry E19545528. He stated “I’ve never used a weapon in any fight. I do have fights though. I told you about the few instances”. In submissions he sought to characterise his involvement in the incident as demonstrating “an occasion where the applicant could have had access to a weapon and did not use it”.

50. [NOT FOR PUBLICATION]

51. [NOT FOR PUBLICATION]

52. The video footage of the incident on 30 January 2016 provides probative evidence entirely in support of the events as described in Facts Sheet H60462259, despite the Applicant’s denials, deflection of responsibility and minimalisation of involvement in oral evidence.

53. The evidence demonstrates that the Applicant is aggressive and belligerent in his dealings with Police and within the tow truck industry. This conduct extends to the general public in circumstances such as those which occurred on 30 January 2016, where the Applicant’s temper resulted in physical aggression and violence.

Character assessment

54. The Tribunal is required to make a value judgment of the Applicant’s character, weighing up a number of considerations, on the basis of the evidence before it.

55. The Applicant’s affidavit included extensive evidence about his family ties, his occupation as a tow truck operator and driver with appropriate licences, his regular contact with emergency services and NSW Police, his use of firearms including recreational and sporting events and compliance with firearms legislative requirements including use and storage, his community work including volunteering, and his community ties. His affidavit annexed 13 references from family, employees and industry associates, friends, charitable organisations and his parish priest.

56. I take those factors into consideration when assessing the Applicant’s character. It is clear that he holds strong religious beliefs and family ties and is heavily involved in his community. These are generally positive factors which I give some weight.

57. The Applicant’s involvement in the tow truck industry exposes him to a competitive and aggressive work environment, in which he is an active player. I consider this a neutral factor in assessing his character.

58. The Applicant’s history of firearm usage and storage is relevant to his fitness and propriety, demonstrating his knowledge of the regulatory requirements and ability to comply with them. I consider this a neutral factor in the circumstances. Similarly, his desire to maintain his licence for the purpose of engaging in recreational and sporting activities, including with his family, is also a neutral consideration in these circumstances as “the Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety”: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at 69.

59. The Applicant’s initial denial of his involvement in the incident of 30 January 2016 reflects negatively on his character. His oral and written evidence about the incidents which formed the subject of the other COPS entries and Facts Sheets was focussed on diminishing the impact or seriousness of his conduct, deflecting responsibility to others, and by straight denial, which also reflects negatively on his character. Both are relevant to the consideration of his “honesty” in the context of determining fitness and propriety by assessment of his honesty, knowledge and ability.

60. The Applicant submitted that “an act of violence by a licensee is not incompatible with him/her being a fit and proper person or the public interest being jeopardised”, relying on Ward and Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 (‘Mewburn’), which he submitted was “far more serious” than the circumstances in these proceedings. In Mewburn the Applicant’s criminal conduct subject to the licence suspension and revocation was based on a history of domestic disputes with his former de facto partner, none of which involved the use of a firearm. He had removed himself from those former domestic situation and neighbours. The Tribunal was of the view in those proceedings that Mr Mewburn was not likely to resort to unlawful firearm usage and that he could be trusted to have possession of a firearm without danger to public safety of the peace, that there was “virtually no risk”.

61. The Tribunal’s determination in Mewburn was made on the basis of its assessment of Mr Mewburn’s character. It has no bearing on these proceedings, which need to be determined on the evidence and Tribunal’s assessment of the character of the Applicant. As discussed in Livadaru v Commissioner of Police, NSW Police Force [2008] NSWADT 160 at [45]:

…whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. Where there is evidence of misconduct, amongst relevant considerations are the seriousness of the misconduct to the particular activity, whether the misconduct is an isolated incident, and the person’s underlying qualities of character: see McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994), in particular, the judgments of Kirby P, at paras 21 to 26, and Powell JA, at paras 59 to 73

62. I have accepted the Respondent’s submissions with respect to the Applicant’s aggressive and belligerent conduct in his dealings with Police. His history of involvement in intimidation, verbal and physical aggression and violence reflects negatively on his character. I afford these matters considerable weight in making my assessment of his character.

63. The Tribunal's consideration is guided by the fact that "the most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety”.

64. On balance, I determine that the Applicant is not a fit and proper person and his character is unsuited to holding a firearms licence. I am not satisfied that there is “virtually no risk” to public safety in the Applicant having access to firearms. I agree that it is not in the public interest for the Applicant to have access to firearms.

65. I therefore affirm the Respondent’s decision, for the reasons given.

Orders

1. The Respondent’s decision 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: 19 October 2018