Tourvas v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 125

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tourvas v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 125

Hearing dates:

10 February 2023

Date of orders:

29 May 2023

Decision date:

29 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

The decision to revoke the Applicant’s Category AB Firearms Licence is affirmed.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – requirement for honesty.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Act 1989 (repealed)

Firearms Regulation 2017

Firearms Regulation 2006 (repealed)

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

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

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Livadaru v Commissioner of Police [2008] NSWADT 160

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

John Tourvas (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00259018

Publication restriction:

Nil.

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to revoke the applicant’s Category AB Firearms licence on 29 July 2021 and the decision on Internal Review on 20 July 2022 to affirm that decision.

Introduction

2. The applicant in these proceedings is Mr John Tourvas (Mr Tourvas). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate on internal review formed the view that it was not in the public interest for Mr Tourvas to continue to hold a Firearms Licence.

3. Likewise, the initial revocation was on the basis that the Commissioner believed that it was not in the public interest for the applicant to hold a firearms licence. That decision was based on information concerning Mr Tourvas’s recent criminal history coupled with prior conduct and the nature of his engagement within the firearms licencing regime.

4. Mr Tourvas has been engaged in the firearms licensing regime since 1996. At various times during this period he has been licensed to possess and use firearms and at other times he has had his applications (on renewal) refused.

5. On Internal Review the Commissioner’s delegate upheld the original decision to revoke the licence. The reviewer made a number of material findings of fact against Mr Tourvas concerning the veracity of his responses in some of his previous licence applications, as well more recent dishonesty offending for which he was convicted.

6. A finding was made that Mr Tourvas acted dishonestly in respect of the licencing regime on prior occasions and found that as a result Mr Tourvas had failed to demonstrate the capacity and maturity necessary to comply with the legislative scheme. The reviewer was not confident of Mr Tourvas’s ability to be truthful and that due to his lack of candour with the Commissioner, whether he could be trusted with firearms. In this context the delegate on review was not satisfied that in the interest of public safety that Mr Tourvas should be authorised with unfettered access to firearms.

7. Mr Tourvas denies that there is any public interest basis to count against his continued ability to access and safely maintain and use firearms. He referred to the background of matters in the past as being incorrect and that he was not a criminal.

Background

8. Mr Tourvas has been licensed to use firearms at various times since his first licence was issued on 23 November 1996. It appears that due to the change in the firearms licensing regime with the Introduction of the Firearms Act 1996 his initial licence issued under the former Firearms Act 1989 (repealed) carried over to a fresh Category AB Firearms Licence issued from 8 December 1997. That licence was due to expire on 29 January 2003 and a fresh Category AB Licence was issued on that date for a period of five years.

9. That Category AB Licence was due to expire on 29 January 2008 however it was suspended by the Commissioner on 3 February 2006 and then revoked by the Commissioner on the same day. This action arose in the context of Mr Tourvas being subject to an Apprehended Violence Order (AVO) issued against him.

10. Mr Tourvas reapplied for a Firearms Licence 16 April 2008 and that application was refused on 27 June 2008 under the mandatory time provisions relating to AVO’s. An Internal Review was requested and on Internal Review the Commissioner affirmed the refusal decision on 5 August 2008.

11. On 21 January 2014 Mr Tourvas again applied for a Firearms Licence. The licence was refused under the mandatory provisions relating to AVO’s (10 year window) on 7 March 2014. The Commissioner later relied on information in the January 2014 application in the current refusal.

12. On 25 February 2019 Mr Tourvas reapplied for a Category AB Firearms Licence. The licence issued on 15 May 2019 for a period of five years. This is the licence subject of the revocation decision which these proceedings concern.

13. The Commissioner identified a number of concerns relating to Mr Tourvas in the period since the licence was issued in February 2019 as well as some prior matters. The following matters were relied upon as findings in the Internal Review by the Commissioner:

• Mr Tourvas was convicted of Dishonestly obtain property by deception and fined $600.00 on 29 March 2021.

• Mr Tourvas had repeatedly misled the Commissioner in his dealings concerning firearms licences.

• In his January 2014 application Mr Tourvas answered ‘no’ to the question concerning whether in NSW or elsewhere in the last 10 years he had been subject to an AVO, despite being subject to an AVO from 3 February 2006 until 1 February 2008 (the entire period being within the last 10 years).

• In his current application of 25 February 2019 Mr Tourvas answered ‘no’ to the question concerning whether in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked. This was despite the prohibition on holding a firearms licence from 3 February 2006 to 2 February 2016, and a suspension on: 3 February 2006, a revocation on 3 February 2006, and refusals on 27 June 2008, (affirmed on 5 August 2008), and a refusal on 7 March 2014.

14. The decision maker concluded that there was an overall risk to public safety regarding Mr Tourvas having access to firearms for the reasons outlined earlier and as a result affirmed the earlier revocation decision.

Jurisdiction

15. The Notice of Revocation was issued under the provisions of the Firearms Act being section 24. Relevantly section 24 provides:

24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if—

(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or

(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997—the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.

(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..

….

16. Clause 20 of the Firearms Regulation 2017 provides:

20 Revocation of licence—licence not in the public interest

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.

17. 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 third matter listed at s 75 concerns the revocation of 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 permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

18. 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.

19. The Tribunal has jurisdiction under the Firearms Act as noted at [17] above.

20. As noted from the section above, 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

21. The application for administrative review was filed with the Tribunal on 31 August 2022 outside of the period provided to lodge an administrative review application with the Tribunal by some 13 days. However on 4 October 2022 the Tribunal made an order pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 extending time to lodge the administrative review to 31 August 2022.

What issues do these proceedings raise for determination?

22. On my assessment the issues are as set out by the Commissioners delegate:

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

In reaching this position the Tribunal will also be required to determine whether on the available evidence Mr Tourvas is a fit and proper person to hold the licence.

23. 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 written evidence

• Exhibit ‘A-1’: Statement of John Tourvas dated 25 August 2022.

• Exhibit ‘A-2’: Statement / reference of P Tourvas dated 7 September 2022.

• Exhibit ‘A-3’: Statement of E Angelis dated 6 September 2022.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act.

• Exhibit ‘R-2’ Supplementary Bundle of redacted COPS events filed 6 February 2023.

• Exhibit ‘R-3’ USB Key containing body-worn camera footage of Record of Interview between investigating Police and applicant.

24. The respondent was legally represented and provided written submissions and made oral submissions at hearing. Mr Tourvas was subject to cross-examination at hearing and made oral submissions at the conclusion of the evidence.

Mr Tourvas’s evidence at hearing

25. In evidence in chief Mr Tourvas adopted his statement (Exhibit A-1). He said that ‘he understands that he is 50 years old and has never done anything bad’. His former fulltime (and current casual) employer the Department of Education are aware of the dishonestly obtain property by deception matter which relates to using someone else’s bank account card.

26. Mr Tourvas said that he picked up the card / credit card when he saw it on the floor of the fast food business (KFC) that he had attended and used it to pay for the food.

27. Mr Tourvas said that he contacted the firearms registry about the matter after his firearms licence was suspended and was advised that a dishonesty offence is the lowest level charge which attracts a 12 months suspension. He added in his evidence in chief that he had never committed any firearms related breaches.

28. Mr Tourvas told the Tribunal that he was previously a computer engineer and retired at 47 years of age and took up casual teaching three years ago due to his qualifications. He teaches K-6 three days a week.

29. In cross-examination Mr Tourvas was asked about his background to which he replied that he is 50 years old and had never harmed anyone. When asked about the misuse of the card Mr Tourvas clarified that in relation to the card he believed at the time that using it would not harm the cardholder. He further clarified his evidence by saying that ‘physically’ he had not harmed anyone as in ‘touching’.

30. Mr Tourvas explained his views further and gave evidence about his time as a computer engineer and said that he picked up how the system worked concerning card fraud, insurance and reimbursement. He said that ‘Falcon Security’ would reimburse the money to the account holder. In respect of this offence he said that pleaded guilty because what he did was technically dishonest and he deserved the Court outcome.

31. The Commissioner put it to Mr Tourvas that his licence was suspended based on being charged with the offence, and the revocation was based on his being convicted and sentenced.

32. It was put to Mr Tourvas that he did not actually know whether the victim of the fraudulent use of the card ever received the funds back into their account. Mr Tourvas said that Police had advised him that the money was reimbursed by the Bank.

33. It was also put to Mr Tourvas that the offence was not a victimless crime. The customer had to make a claim and go through ‘various hoops’ to get the card stopped and the funds returned. Mr Tourvas agreed with this characterisation. He also agreed that the purchases that he made were not essential.

34. Mr Tourvas was taken through his purchases with the card that day noting and agreeing with each as they were put to him. $45.70 at KFC for food, $48.66 at Caltex for petrol, $99.00 for a Ginger Jar at Harvey Norman, $76.48 worth of auto products at Supacheap auto, $162.36 of fishing accessories / clothing at BCF, and $99.00 worth of liquor from Liquorland. He agreed that he had made these purchases with the card that he had found knowing that he was not authorised to make the purchases.

35. When asked why he ended his purchasing spree and disposed of the card by throwing it away Mr Tourvas said that he ‘did not want to overdo it’. Mr Tourvas stated a number of times in his evidence that he is an honest person and not a criminal. Mr Tourvas admitted that the actions were ‘wrongdoing’ but believed that only the ‘Bank’ would suffer from his actions.

36. Mr Tourvas agreed with the proposition that on his criminal record there is a charge relating to dishonesty, however he believes that he is a changed person and stated this in his evidence.

37. A specific line of questioning occurred in relation to the purchases at BCF. Mr Tourvas said that he made the purchases and then his son wanted a shirt purchased for him. He said that it was for this reason that the shirt was run through as a separate transaction. Mr Tourvas agreed with the proposition that he separated the transactions so as to not exceed the $100.00 ‘tap limit’ where the card could be used without a PIN.

38. Mr Tourvas confirmed that he had not paid the total of funds ($531.40) back to the victim.

39. During Mr Tourvas’s cross examination the Tribunal was played the body worn video of the Police Interview with Mr Tourvas where he was questioned prior to proceedings being commenced against him. During the Police video (introduced as part of the Commissioner’s evidence Exhibit R-3), Mr Tourvas is heard to state ‘if I had known it was a police matter I would have just handed it (the card) in’. He told Police that the same thing had happened to him previously. His wife had advised to hand the card in but because this had previously happened to him Mr Tourvas said that he decided to go ahead and use the card. He said that they just did their normal shopping for the day while they were on Holidays (on the south coast). He said that it ‘wasn’t a deliberate thing’.

40. In respect of the BCF purchases the store video (which was played to Mr Tourvas on a computer during the interview) shows Mr Tourvas bringing the first group of items (which totalled $72.00) up to the counter. He is then seen bringing the shirt as a separate transaction ($79.00) to the counter. The officer asks Mr Tourvas whether he was worried that he might go over the $99 / $100 tap limit to which Mr Tourvas agrees that he was concerned about that.

41. Mr Tourvas told the Police that he thought that what he was doing was wrong from the start. He said that he ‘was guilty from the beginning’.

42. Mr Tourvas told Police that after the BCF purchases he stopped using the card and the family went to Coles and purchased about $150.00 worth of groceries but these were paid for with his own ANZ Card. Later they went to Huskisson RSL and he used his own ANZ Card to pay the $150.00 bill at that venue. Mr Tourvas said that he disposed of the other person’s card before they went to Coles and said that he did so because he ‘is a criminal at the end of the day’.

25. During the interview Mr Tourvas was also played video footage of his motor vehicle being fuelled with petrol. It was on the basis of the purchase of fuel from that particular bowser with the card, whereby the CCTV captured the vehicle’s number plate, that Mr Tourvas was identified as a suspect in the enterprise.

26. After viewing the video footage (R-3), cross-examination of Mr Tourvas continued. Mr Tourvas agreed that when he first picked up the card his wife told him to hand it in. He also agreed that when he had finished with the card he did not hand it in but threw it in the bin.

27. It was put to Mr Tourvas that the only reason that he did not use the card for purchases at the Coles supermarket was because the total was over the $100.00 tap and go limit. Mr Tourvas denied this and said that ‘he felt bad about using the card’ as the reason he used their own card.

28. Mr Tourvas was questioned about his experience working in the banking industry and that he was aware of how credit card software works concerning reimbursements to account holders. It was suggested that Mr Tourvas thought (at the relevant time) that he would not get caught and that was why he engaged in the conduct.

29. Mr Tourvas was also questioned about historical disputes with a neighbour in 2004 and then issuing of an Apprehended Violence Order (AVO) against him. Mr Tourvas said that he was unaware at the time what an AVO was and that was why he did not turn up to Court. The AVO was issued and expired in 2008. Mr Tourvas said that once the neighbour (who the AVO sought to protect) was deceased he applied to the Court to have the issuance of the AVO removed from his record.

30. Another matter was put to Mr Tourvas in cross-examination concerning parking on private land without permission. The Church where his family attended was adjacent to a retail premises (Fruit Barn) and the proprietor had problems with various worshipers (including Mr Tourvas) parking their vehicles in his parking area and taking up customer parking. Various threats and obscene words were reported by the proprietor as being directed at him by Mr Tourvas which were denied. He said that the parking area was not private parking.

31. Another matter was raised with Mr Tourvas concerning an AVO. There was an application concerning an Order against another member of the family returnable at Court on 31 March 2023. The Tribunal identified that the background to that matter does not specifically concern these proceedings and so does not detail those matters before the Court.. However the Commissioner observed that Mr Tourvas had approached another member of the family about having the order (against the third party) withdrawn.

32. Mr Tourvas was questioned about his 2006 Firearms Licence application whereby under personal history at item ‘H’ his answers did not reflect his knowledge of the dispute with his neighbour. Mr Tourvas noted that the form was completed approximately three weeks prior to any AVO being in place.

33. Mr Tourvas maintained that the AVO having been revoked by the Court – (which he referred to as being the ‘High Court’), then there was nothing misleading about his answers as the form specifically excluded AVO’s that had been ’revoked’. Other than his testimony no other evidence was provided to the Tribunal about this matter.

34. A further matter was raised in cross- examination with Mr Tourvas concerning his 25 February 2019 Firearms Licence application. At question (a) under Person History Mr Tourvas was asked whether in NSW or elsewhere he had been refused of prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked? Mr Tourvas had answered ‘No’ to that question. When it was put to him in cross examination that this was a false answer and formed part of his declaration which he approved when he submitted the application electronically, he said that he was advised by someone in the Firearms Registry when he inquired about that aspect of the application, that if he answered ‘yes’ his application would be automatically refused.

35. In addition Mr Tourvas also stated that the answer to question (a), at [52] above, he linked the matter to the question on the application at (f) ‘within the last 10 years been the subject of an Apprehended Violence Order (other than an order which was revoked) or an injunction order by the Family Court, or presently subject to an Interim Apprehended Violence Order’ and because of the position that the AVO had been revoked (by the High Court) he believed that was also linked to question (a) and went some way to explaining his answer.

36. Mr Tourvas was questioned about the lack of remorse for the victim as identified from the email chain with the Firearms Registry at page 100 of the s 58 documents. The wording of the emails were focused on Police exercising discretion to reinstate the licence as the offence was only ‘a minor dishonesty charge with a credit card transaction’. Mr Tourvas maintained that it was a ‘victimless crime’.

37. In respect of one of his genuine reasons for holding a Firearms Licence and membership and attendance at clubs for firearms matters, reference was made to the Sporting Shooters Association Australia (SSAA) membership records. Then Tribunal notes from these that from 2019 to date Mr Tourvas has not been licenced to possess firearms and that would appear to explain an absence of attendance after February 2021 but not the absence of attendances May 2019 to February 2021, although Covid 19 provisions may explain part of that period.

38. The Tribunal asked some questions of the witness consistent with its powers under s 38 of the NCAT Act. In respect of his vermin shooting Mr Tourvas said that he shot at a property at Hill End near Bathurst in the period 1998 to 2006. He also attended a property with another licenced shooter at Cowra.

39. Since 2006 (in the period where he had been licenced on and off up to 2019), Mr Tourvas had engaged in clay target shooting.

40. In respect of the references that he tendered (Exhibits ‘A-2’ and ‘A-3’) Mr Tourvas said that he gave the referees an outline and they wrote the reference which he then typed up and they read and signed.

Commissioner’s evidence

59. The Commissioner relied upon the material outlined at [23]. As noted above none of the Commissioner’s witnesses (Re: Exhibit ‘R-3’) were required for cross-examination at hearing.

Applicant’s submissions

60. Mr Tourvas submitted at the end of his evidence that the Tribunal had helped him understand the situation in respect of his licence and how his recent charge was relevant to the matter. Mr Tourvas talked about his positive firearms history in oral submissions and that the only incursions on that history arose because of the neighbour AVO matter and the recent credit card matter.

61. Mr Tourvas submitted that there had been no breaches in respect of his lawful handling and use of firearms and that he understands that safety comes first within the community when it comes to access to and possession of firearms.

Commissioner’s Submissions

62. The Commissioner made oral submissions at the conclusion of the evidence. The Commissioner submitted that no weight could be given to the reference at ‘A-3’ as it makes no reference at all to the basis of the refusal of the internal review and the decision to revoke the licence.

63. Likewise the reference of the spouse whilst aware of the KFC matter, there was a lack of evidence that the author was aware of the charges. It was submitted that the reference should also carry no weight.

64. The Commissioner in oral submissions referred to the fact that firearms possession and use is a privilege not a right. In respect that any licence might be subject to conditions the Commissioner submitted that Mr Tourvas’s untruthfulness on the application forms was a significant matter. He was aware of the prior refusals and was being dishonest in his written responses. As a result the Commissioner could not be satisfied in their dealings with Mr Tourvas if he was issued a firearms licence.

65. The Commissioner submitted that Mr Tourvas’s recent evidence in reply and the nature of his evidence at hearing was that he was clearly on notice that the AVO’s and matters in his history would be tested in cross examination. He had been filing in the application forms for some years and had (understandably) waited to complete forms knowing the critical impact that dates and the passage of time would have on some of his answers at certain periods in his firearms history.

66. The Commissioner submitted that Mr Tourvas showed little remorse or contrition for his significant recent conviction and had not made any attempts to repay the money to the victim but stood by his unsubstantiated belief that there would have been no impact on the victim. This was clearly not the case as the victim had reported the card misuse to Police in a timely manner.

67. In addition the Commissioner submitted that the Tribunal would have concerns about Mr Tourvas’s genuine reasons for holding a Category AB Firearms Licence based on his club membership and attendance history.

68. In written submissions the Commissioner referred to a line of cases that dealt with how the Tribunal should construe the terms ‘fit and proper’ and ‘public interest’ in the context of the legal framework and underlying principles of the Firearms Act 1996.

69. The Commissioner relied on the often cited cases of 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.

Consideration

70. The decision under review is based upon the notion that Mr Tourvas having access to firearms would be contrary to the public interest. 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 Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

71. 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, and

72. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered having regard to the principles of the Act.

73. In Livadaru v Commissioner of Police [2008] NSWADT 160 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. ….

74. I note also 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.

75. As referred to above at [69] the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [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.

76. Mr Tourvas has a documented history of dishonesty. Whilst he was dishonest when he used the card and also when he failed to hand it in, he was also in my view not completely honest in some of his answers in evidence. It may have been a manifested lack of insight but to maintain to investigating Police, the Tribunal and to himself that he is not a criminal and has not done anything wrong is in my view both misguided and simply untrue.

77. In addition his answers on his most recent Licence application form (that he had never been refused a licence), and earlier forms concerning AVO’s for which no verified evidence has been provided concerning revocation, show that not only was he dishonest, but that he was seeking to manipulative the situation dishonestly for his benefit. This matter (noting the declaration) is in my view equally or more serious than the fraudulent use of the bank card to obtain goods, especially noting the declaration.

78. Having observed Mr Tourvas giving evidence under oath it appeared that he was not across the seriousness of the matters for which he had been refused the licence, nor did he demonstrate insight into his actions in a frank and candid manner. It was only when prompted or when he seemed on reflection to ascertain what the Commissioner’s legal representative was seeking to extract with his evidence that he reflected and gave appropriate answers. Various matters were trivialised by him in his oral evidence being stated as being: ‘stupid’, ‘technically dishonest’ and a ‘victimless crime’.

79. Mr Tourvas seemed to infer in his approach to the cross examination that as the matters did not involve violence or assaulting anyone then they were of minor relevance as to his ability to maintain a firearms licence. His evidence is set out at [25] - [58] above. At the end of his Police interview Mr Tourvas had referred to the fact that the family were on holidays and that use of the card ‘was not a deliberate thing’. (At [39] above).

80. It was only after significant probing by the Commissioner’s legal representative that Mr Tourvas appeared to gain any insight into his actions, the seriousness of them, and the impact on the victim.

81. I note that whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

82. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearms Act access to and use of firearms is not a right but a privilege.

83. In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.

84. In applying the discretion for the public benefit, having considered the evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) which would prevent Mr Tourvas being granted the licence today by way of reinstatement.

85. Having reviewed his evidence about the fraud incident and the false declaration to the Firearms Registry, I am not satisfied that Mr Tourvas has the requisite level of honesty to be able to be trusted with possession and use of firearms and entrusted again with this privilege so that he may exercise and maintain sufficient continuous safe control of firearms.

86. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"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".

87. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would not be in the public interest to reinstate the licence.

88. His level of dishonesty displayed on the application forms apparently so that he would obtain his preferred outcome has tipped the balance against reinstatement being in the public interest.

89. Having regard to the cases referred to above in my view it would be contrary to the public interest to reinstate Mr Tourvas’s firearms licence and I so find.

90. Had Mr Tourvas been truthful with the Commissioner the stated (negative) outcome may well have occurred. However on review he would have been able to argue that the circumstances of the earlier refusals and revocations were now historical, and if necessary provide cogent evidence of the revocation of prior AVO’s to the Commissioner’s or Tribunal’s satisfaction. Rather than take the honest course and assess his further options as required, Mr Tourvas mislead the Commissioner, and it was only due to his own subsequent criminality (the criminal charges and conviction in 2021) that he was prevented by the Commissioner from being licenced.

Conclusion

91. Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.

92. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.

93. I therefore make the following orders:

Orders

1. The decision to revoke the Applicant’s Category AB Firearms Licence is affirmed.

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

Registrar

Decision last updated: 29 May 2023