Vitaliti v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vitaliti v Commissioner of Police, NSW Police Force [2022] NSWCATAD 16

Hearing dates:

26 November 2021

Date of orders:

14 January 2022

Decision date:

14 January 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

1. The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – licensing – firearm licence – revocation – the public interest – provision of false or misleading information – traffic offences – criminal history

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16

Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 50

Davos v Commissioner of Police [2013] NSWADT 7

Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

Masterson v Commissioner of Police [2017] NSWCATAP 206

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Category:

Principal judgment

Parties:

David Vitaliti (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
M Fantin (Applicant)
R Coffey (Respondent)

Solicitors:
Gary Cassim & Associates (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/00179157

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the Confidential Material and the Confidential Affidavit, or the matters contained in the Confidential Material and the Confidential Affidavit is prohibited.

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the confidential hearing is prohibited.

Judgment

1. This is an application by Mr David Vitaliti seeking a review of the decision of the Commissioner of Police (the Commissioner) to revoke the Category AB firearm licence in a letter dated 27 November 2020. On 13 May 2021, the decision was reviewed and affirmed by the Commissioner. For the reasons that follow, the Tribunal affirms the Commissioner’s decision.

Background

2. On 11 December 2018, Mr Vitaliti was issued with a Category AB firearm for the reason of recreational hunting/vermin control.

3. On 30 April 2020, the Commissioner issued a notice of suspension of the firearm licence on the grounds of ‘not in the public interest’.

4. The Notice of Revocation dated 27 November 2020 states that the firearm licence was revoked on the grounds that Mr Vitaliti has 39 traffic infringements and two charges proved in relation to breaking traffic laws. The charges involved consistently driving at excessive speeds and doing burnouts, the last traffic infringement occurring on 14 June 2020 for driving 30km/h more than the speed limit.

5. The Notice of Revocation relied on ss 24(2)(c) and 24(2)(d) of the Firearms Act1996 (NSW) (Firearms Act) and clause 20 of the Firearms Regulation 2017 (NSW) (Firearms Regulation) and stated that Mr Vitaliti was not a fit and proper person to possess firearms.

6. The Statement of Reasons given by the Commissioner on the internal review relied on Mr Vitaliti’s driving record, an interaction with police in 2005 and being subject to an Apprehended Violence Order (AVO) and contravening an AVO.

7. At the Tribunal hearing, the Commissioner submitted that it was not in the public interest for Mr Vitaliti to hold a firearm licence.

8. Mr Vitaliti alleges that the Commissioner revoked his firearm licence so that the NSW Police Force can influence his father who is facing a criminal trial. This allegation is grounded on the fact that Detective Senior Constable Luikens (DSC Luikens) is the informant in Mr Vitaliti’s father’s criminal trial and is also the police officer who provided a confidential and an open statement in these proceedings.

9. In closing submissions, counsel for Mr Vitaliti said that by getting to Mr Vitaliti’s father, there may be some concessions. It was asserted that there is a perception of a lack of impartiality as it is ‘odd’ that DSC Luikens was asked to be involved in Mr Vitaliti’s firearm application in this Tribunal.

Relevant Legislation

10. Section 63 of the Administrative Decisions Review Act 1997 (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.

11. 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.

12. The principles and objects of the Firearms Act are set out in s 3 of the Act, relevantly:

Principles and objects of this 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,

...

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

...

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms.

13. Section 11(7) of the Firearms Act is in the following terms:

(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.

14. Section 24(2) Firearms Act is in the following terms:

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.

15. Clause 20 of the Firearms Regulations provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the person to continue to hold the licence.

Evidence

16. Mr Vitaliti relied on two affidavits with numerous annexures, filed in these proceedings and was cross-examined.

17. Mr Vitaliti’s affidavit dated 6 September 2021 attached a number of character references. Mr Vitaliti confirmed in cross- examination that he did not disclose the reasons why the firearm application was revoked to the persons who provided the character references.

18. Mr Vitaliti first applied for a Category AB firearm licence in 2013. His application was refused because of an AVO made against him in 2007.

19. Mr Vitaliti applied for a Category AB firearm licence in 2018 and was issued with the licence on 11 December 2018. On 21 April 2020, Mr Vitaliti was informed by Senior Constable Dechaufeie that his licence would be suspended once he attended his home and inspected the firearms. On 30 April 2020, Mr Vitaliti’s two shotguns and three rifles were removed and he was informed that his licence was suspended because it was not in the public interest.

20. Mr Vitaliti provided a one-page statement to the Commissioner for the purposes of the internal review on suspension. He also provided a copy of this for the Tribunal’s review. Mr Vitaliti provided a one-page statement to the Commissioner for the purposes of the internal review on revocation on 4 January 2021, which was included in the s 58 of the ADR Act evidence on which the Commissioner relied.

21. The Commissioner relied on documents lodged pursuant to s 58 of the ADR Act, a statement of DSC Luikens dated 17 November 2021 and a statement of DSC Luikens dated 6 August 2021.

22. On 14 September 2021, the Tribunal made orders that:

1. paragraphs 8 to 38 and 46 to 48 and annexures A to N of DSC Luikens dated 6 August 2021 of that statement (other than annexure F) was not required to be served pursuant to s59 of the ADR Act (Confidential Material);

2. That the Confidential Material was not to be disclosed to Mr Vitaliti or published pursuant to s 64 of the CAT Act;

3. The publication of the evidence has referred to in order (1) given before the Tribunal is prohibited. This order is made under s 64(1)(c) of the Civil and Administrative Tribunal Act 2013.

23. The effect of the orders made by the Tribunal is that there is Confidential Material before the Tribunal which Mr Vitaliti did not have access to. Part of the substantive hearing on 26 November 2021 was a ‘closed session’, conducted in the absence of Mr Vitaliti and his legal representative.

24. I have considered all of Mr Vitaliti’s evidence. In essence, Mr Vitaliti’s evidence is that his criminal and driving record be put into the context that since 2015, he has matured a great deal, his values and focus have changed as he now has a wife and a young child born in April 2021.

While I have referred to some of the evidence, it is not necessary to refer to all of the evidence and it has all been taken into account. Information on the Licence Applications

25. Mr Vitaliti’s application for a firearm licence was declined in 2013 on the basis that he was subject to an AVO on 18 January 2007 current for the period from 18 January 2007 until 9 January 2008. In applying for the firearm licence, Mr Vitaliti was asked: ‘Have you even in NSW or elsewhere, within the last 10 years been the subject of an Apprehended Violence Order (other than an order which was revoked) or an injunction ordered by the Family Court’. Mr Vitaliti responded with a ‘no’.

26. The Category AB Firearm licence application dated 7 August 2018 contains the following question:

1. Have you in NSW or elsewhere been refused or prohibited from holding a firearm licence or permit or had a firearms licence or permit suspended, cancelled or revoked? Mr Vitaliti answered ‘no’ to this question.

27. Mr Vitaliti’s evidence was that, in regard to the questions of past refusal and being subject to an AVO, he was confused by the questions. He said that it was very difficult to understand the questions.

28. Mr Vitaliti’s evidence in regard to the questions about AVOs was that the question was confusing and that he understood the question to mean whether he was at the time of the application on a ‘good behaviour bond or an AVO’.

29. Mr Vitaliti’s evidence was that in regard to both questions, he did not seek any assistance to understand the questions he was required to answer.

Domestic Violence and Domestic Disputes

30. Between 2003 and 2008 there was alleged extensive domestic violence and domestic disputation between Mr Vitaliti and his mother and father. Mr Vitaliti gave evidence that his parents went through a hard patch, his father went to prison, he did not know what was going on, he was young, he was ‘mixed up in the middle’. He said that he ‘did some silly things’.

31. In regard to specific questions in regard to incidents in 2003 and 2006, Mr Vitaliti either denied the allegations or could not recall them. He denied that he ‘bashed on his mother’s door’ or chased his father with a hammer or assaulted his father with a club lock.

32. Mr Vitaliti recalls that in 2006, he was placed on a s 10 bond but did not recall being subject to an AVO.

33. Mr Vitaliti was asked whether he accepted that family and domestic violence was a significant concern. His response was ‘I guess so’. Mr Vitaliti was asked what he understood family violence to mean. Mr Vitality responded that he understood family violence to mean ‘When you assault a family member’.

34. A COPS Event alleges that, on 16 November 2003, Mr Vitaliti’s grandmother contacted the police in regard to Mr Vitaliti’s alleged aggressive and argumentative behaviour, ripping the telephone off the wall and taking his mother’s handbag. It is further alleged on the COPS Event that police attended Mr Vitaliti’s home and collected the handbag without further incident. Mr Vitaliti’s evidence was that he had no recollection of this incident.

35. A COPS Event alleges that, on 15 March 2004, Mr Vitaliti’s mother contacted the police in regard to Mr Vitaliti’s alleged aggressive and violent behaviour and damage to her property. It is further alleged on the COPS Event that police spoke with Mr Vitaliti over the telephone and that Mr Vitaliti allegedly was upset with his mother for not letting him inside her house and was remorseful for his actions. Mr Vitaliti’s evidence was that he had no recollection of this incident.

36. A COPS Event alleges that on 25 September 2006, Mr Vitaliti’s father contacted the police as Mr Vitaliti was said to have chased him with a hammer. Mr Vitaliti denied that this occurred.

37. A COPS Event alleges that on 9 December 2006, Mr Vitaliti’s father contacted the police as Mr Vitaliti said to his father ‘I am going to crack your f***in head’, raised a club lock above his head with one hand and with the other hand punched his father in the face and struck his father with the club lock to his upper left bicep. Mr Vitaliti denies the use of a club lock and says that he was acting in self-defence.

38. On 9 January 2007 an AVO was issued against Mt Vitaliti listing his father as requiring protection. On 17 November 2007, Mr Vitaliti breached the AVO and was charged with a contravention of an AVO.

Criminal History

39. Mr Vitaliti’s criminal history spans a period of ten years from 2005 to 2015. During this period, he was charged with eight offences and was found guilty of four. On three occasions, no conviction was recorded. The last offence was driving a vehicle; wheels undergo loss of traction in 2015. In 2006, Mr Vitaliti was convicted of common assault with a two-year s 10 bond.

Traffic Offences

40. Since 2003, Mr Vitaliti has had his driving licence suspended on ten occasions. Some of the more serious offences include, exceed limit by over 30km on 13 June 2020 and 1 August 2004, burnouts and drive while suspended in 2005.

41. In regard to the last offence of exceeding the limit by more than 30km on 13 June 2020, Mr Vitaliti said that it was night time, he was heading home and he was overtaking a car.

42. Mr Vitaliti’s counsel described the traffic offences as ‘not fantastic’. It was put to Mr Vitaliti that his driving behaviour demonstrates a disregard for the safety of himself and the safety of the public, Mr Vitaliti responded that ‘I know I do not have a strong record’.

Close Associate

43. The Commissioner submitted that Mr Vitaliti has a close associate who has an extensive criminal history. The close associate was his father who is subject to serious criminal charges listed for trial in 2022. Mr Vitaliti and his father have a close father and son relationship.

Mr Luikens

44. DSC Luikens filed three statements in these proceedings. Two of the statements are dated 6 August 2021 and 17 November 2021. The third statement is confidential pursuant to s 59 of the ADR Act and cannot be disclosed to Mr Vitaliti or published pursuant to s 64 of the CAT Act.

45. DSC Luikens’ evidence is that on 3 December 2018, the charges against Mr Vitaliti’s father went to trial, resulting in a hung jury on 21 December 2018. The charges are proceeding to a second trial in May 2022. The co-offender pleaded guilty and has provided a statement to police directly implicating Mr Vitaliti’s father.

46. DSC Luikens’ evidence is that the decision to pursue the charges against Mr Vitaliti’s father were made by the Office of the Director of Public Prosecutions (ODPP), and he strongly supports the ODPP’s decision to continue the charges to a second trial based on an assessment of evidence and not ‘personal animus’.

47. DSC Luikens agrees that in 2017, he had a conversation with Mr Vitaliti in regard to his father’s trial but denies Mr Vitaliti’s recollection of the conversation.

48. In regard to Mr Vitaliti’s firearm licence, DSC Luikens says that he did not initiate the revocation process or make the decision to suspend the licence.

49. DSC Luikens was cross-examined. He gave evidence that he was asked to prepare the statement with the confidential information by the Office of General Counsel as he had last contact with Mr Vitaliti. He did not agree that his involvement lacked impartiality and said that he had no personal interest in this matter because of the matter against Mr Vitaliti’s father.

50. DSC Luikens agreed that the allegations against Mr Vitaliti’s father do not involve firearms. DSC Luikens did not agree that Mr Vitaliti does not have an extensive criminal record. DSC Luikens denied that he was asked to be involved in Mr Vitaliti’s matter to put pressure on his father or that he proposed that Mr Vitaliti’s firearm licence should be revoked.

Submissions

Mr Vitaliti’s Submissions

51. In the written submissions, Mr Vitaliti sets out the case law as to ‘public interest’ within the meaning of clause 20 of the Firearms Regulations. The evidence he relies on, a consideration of his criminal history and driving record details about Mr Vitaliti’s father’s criminal trial, DSC Luikens’ involvement in the trial and concludes that the Commissioner’s decision to revoke Mr Vitaliti’s firearm licence was not a decision that touched on or concerned whether Mr Vitaliti was a fit and proper person or the public interest. It was submitted that Mr Vitaliti ‘has been dragged into’ DSC Luikens’ issues with Mr Vitaliti’s father because of the father/son relationship.

52. Counsel submitted in closing that Mr Vitaliti’s criminal and traffic record between 2004 and 2015 is not fantastic but is based on Mr Vitaliti’s stupidity and youth, and the criminal and traffic record is only relevant if there is evidence of a continuation of similar conduct.

53. It was submitted that Mr Vitaliti is a business owner and has a child and that his days of being a menace or being in contact with the police are behind him and that, on an objective basis, he has not been deliberately a danger to society and the community.

54. It is submitted that there is no evidence as to an association between Mr Vitaliti and his father in the decisions made by the Commissioner which relied on ‘all relevant document’. However after Mr Vitaliti made an application to this Tribunal, the Commissioner relies on evidence from DSC Luikens as to a confidentiality order pursuant to s 59 of the ADR Act, alleging risk of Mr Vitaliti’s father gaining access to the firearms. Mr Vitaliti submits that the Tribunal should reject the submission that Mr Vitaliti’s father would get access to the firearms.

55. Mr Vitaliti claims he was interrogated by Mr Luikens and that the only thing that could have changed since 2018 when Mr Vitaliti was issued with the firearm licence is his father’s trial.

56. Mr Vitaliti says that he has always complied with the conditions of a firearm licence, including safe storage. As to the errors made answering questions on the firearm applications, Mr Vitaliti admitted the error. It was an innocent mistake and not deliberate.

Commissioner’s Submissions

57. In the written submissions, the Commissioner set out the factual matters on which it relied to assert that the licence was correctly revoked based on s 24(d)(d) of the Firearms Act and clause 20 of the Firearm Regulations. Broadly speaking, the Commissioner relied on the following factual matters: domestic disputes, criminal history, traffic offences, errors on the licence application and confidential information.

57. The Commissioner also set out the case law as to ‘public interest’ within the meaning of clause 20 of the Firearms Regulations 2017.

58. In closing submissions, the Commissioner submitted that the Tribunal should accept DSC Luikens’ evidence that he was not involved in the decision to revoke Mr Vitaliti’s firearm licence or the review process that followed and that there is insufficient material to assert that Mr Luikens was biased.

59. As to Mr Vitaliti’s oral evidence, the Commissioner submitted that it was self-serving, non-responsive, for example, as to ripping his mother’s phone off the wall and deflecting the allegations of violence. The Commissioner submitted that Mr Vitaliti lacked insight as to family and domestic violence and that his evidence should not be accepted.

60. In regard to the most recent traffic infringement, the Commissioner submitted that it was serious and demonstrated a pattern of disregard to public safety.

Consideration

A Question as to Procedural Fairness

62. In closing submissions, Mr Vitaliti took issue with questions asked of Mr Vitaliti in regard to an alleged incident involving his father using a hammer to damage a wall and his involvement in the incident as this allegation has never been raised with Mr Vitaliti in the Commissioner’s evidence or submissions prior to the final hearing.

63. Taking into account the statutory scheme in part 4 of the CAT Act, in particular s 38(5)(c) of the CAT Act, I disregard the questions and answers given on this topic, as, in the circumstances of these proceedings, it would be procedurally unfair for the Tribunal to make findings in regard to allegations not raised with Mr Vitaliti prior to the final hearing on which the Commissioner seeks to rely.

Relevant Findings of Fact as to Mr Vitaliti’s Evidence

64. The Tribunal finds that Mr Vitaliti did not correctly answer the question in the 2013 application for a Category AB Firearms Licence as to being subject to an AVO or an injunction ordered by the Family Court within the last ten years.

65. On 30 August 2013, he received a Notice of Refusal from the Commissioner explaining that the reason for the refusal was that the AVO was current for the period from 18 January 2007 until 9 January 2008 and that there was no discretion for granting a firearm licence due to the AVO until after 9 January 2018.

66. The Tribunal finds that Mr Vitaliti understood that he could not apply for a Category AB Firearms Licence until after 9 January 2018 and applied for the Category AB Firearms Licence on 14 August 2018.

67. The Tribunal finds that Mr Vitaliti did not correctly answer the question in the 2018 application for a Category AB Firearms Licence as to having been refused from holding a firearm licence or permit.

68. The Tribunal is not satisfied that Mr Vitaliti was honest with the Tribunal when he told the Tribunal that he did not understand the questions on the 2013 and the 2018 application forms because they were confusing.

69. Mr Vitaliti did not impress as a witness of truth as he demonstrated no genuine engagement with the questions asked of him in cross-examination and sought to either deflect or minimise the seriousness of his conduct. For example, in regard to questions involving the family violence, the Tribunal formed the view that Mr Vitaliti was not candid with the Tribunal in his responses that he had no recollection at all of the incidents. The Tribunal formed the view based on the witness’s demeanour that he did not wish to explain the incidents and his involvement in them. When Mr Vitaliti did indicate he had some knowledge of the incidents, he minimised the seriousness of the alleged conduct or its impact on his own safety or that of others.

70. I have considered the fact that Mr Vitaliti did review the s 58 documents prior to the hearing and that the incidents were some 15 or so years ago (2004 to 2007). Mr Vitaliti had no recollection of some of the family violence events where it was alleged that he acted in a violent manner. However, he was certain in his recall that he did not pursue his father with a club lock or a hammer in 2006 as alleged in the COPS Events.

71. I formed the opinion that Mr Vitaliti did not have a reasonable understanding of the importance of concerns with family violence held by the Commissioner. While Mr Vitaliti answered questions, he agreed with by saying ‘yes’ or ‘yeh’. In regard to a question whether he accepted that family and domestic violence was a significant concern, his response was ‘I guess so’. I formed the opinion that Mr Vitaliti’s responses to the seriousness of family violence were equivocal.

72. I formed the opinion that Mr Vitaliti held a strong belief that he was being victimised by the Commissioner because of his relationship with his father and was not prepared to consider the seriousness of his past conduct, take responsibility for it and he made no effort to demonstrate how he had developed an insight and understanding of public interest matters raised with him. The last traffic infringement occurred relatively recently in June 2020. Mr Vitaliti was exceeding the speed limit by more than 30km/h and this is a serious traffic offence.

Whether the Decision to Revoke the Licence was made for Improper Reasons/Apprehension of Bias

73. Mr Vitaliti’s submission that his firearm licence was revoked because of his relationship with his father who is facing a criminal hearing is unsupported by evidence or any available inferences.

74. I accept SDC Luikens’ evidence that he is the informer in Mr Vitaliti’s upcoming criminal trial and was instructed to prepare the confidential affidavit in these proceedings because he was the police officer with the most recent information about Mr Vitaliti’s father and Mr Vitaliti.

75. I also accept SDC Luikens’ evidence that he was not involved in the decision to revoke the firearm licence or the review of the decision by the Commissioner.

76. SDC Luikens was not cross-examined about the conversation he had with Mr Vitaliti sometime in 2017 in the Marrickville Police Station and I make no factual findings about whose version of the conversation is to be preferred. Mr Vitaliti and SDC Luikens give different accounts of the conversation. Even if I did accept Mr Vitaliti’s version of the conversation, it would not change the finding that SDC Luikens had no role in the Commissioner’s decision to revoke Mr Vitaliti’s firearm licence or in the internal review of the decision.

77. Mr Vitaliti’s submission that the Tribunal should only consider the matters relied on by the Commissioner is incorrect as the Tribunal is not restricted to consideration of the material that was before the original decision maker and may have regard to any relevant material before it at the time of the review: s 63(1) ADR Act; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Public Interest

78. The Commissioner of Police relies on s 11(7) of the Firearms Act and submits that it would be contrary to the public interest to grant Mr Vitaliti a firearm licence. Public interest is not defined in s 11(7) or elsewhere in the Firearms Act but is informed by the underlying principles and objects of the Act and allows for matters beyond an applicant’s character to be taken into account. Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 50 at [23].

79. 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. In Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24], the Tribunal found that public safety is to be given paramount consideration.

80. In considering the question of public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme. Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16 at [33].

81. In Davos v Commissioner of Police [2013] NSWADT 7 at [117], the Tribunal said:

The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.

82. The Tribunal has to consider all of the evidence in the exercise of its discretion and no burden falls on either party. The Tribunal is not satisfied that Mr Vitaliti understands that the possession and use of a firearm is a privilege and that strict controls, including providing information on the application form which is true and correct is critical and is imposed to provide public safety.

83. The Tribunal finds that taking into account all of the surrounding circumstances, Mr Vitaliti’s attitude demonstrated a lack of a nuanced understanding that the overriding focus in granting a firearm licence is based on public safety. Mr Vitaliti’s evidence as to the provision of incorrect information on the firearm application form demonstrated a lack of insight as did his evidence that he was driving 30 km/h above the speed limit so as to overtake a car while driving home.

84. Mr Vitaliti relied on character references from his business associates, his accountant, his doctor and his father. I have considered the character references but give them little weight as Mr Vitaliti did not inform these persons of his criminal and traffic history or why the firearm licence was revoked. The character references are not addressed to the Tribunal and do not say why they were prepared.

Section 24(2)(b)(i) of the Firearms Act

85. Section 24(2)(b)(i) of the Firearms Act states that a licence may be revoked if the licensee supplied information which was (to the licensee’s own knowledge) false or misleading in a material particular in, or connection with, the application for the licence.

86. Clause 19 of the Firearms Regulations provides that the Commissioner may revoke a licence if he or she is satisfied that ‘it is not in the public interest for the licensee to continue to hold the licence’.

87. Mr Vitaliti admitted that he provided incorrect information in response to a question in the Application for a Personal Firearm Licence in 2013 in regard to a question and again in the Application for a Personal Firearm Licence in 2018.

88. Mr Vitaliti made no submission that the questions were not in regard to a material particular. Even if Mr Vitaliti submitted that the information was not in regard to a material particular, the Tribunal is satisfied that the information sought in the two questions above was in regard to material particulars.

89. The question the Tribunal has to determine is whether Mr Vitaliti knowingly provided false information or whether the false information was provided without Mr Vitaliti’s knowledge.

90. Mr Vitaliti’s evidence was that he provided false information because the questions were confusing and difficult to understand. The questions were:

1. Have you in NSW or elsewhere been refused or prohibited from holding a firearm licence or permit or had a firearms licence or permit suspended, cancelled or revoked? Mr Vitaliti answered ‘no’ to this question.

2. Have you in NSW or elsewhere, within the last ten years been the subject to an AVO (other than an order which was revoked) or an injunction ordered by the Family Court? Mr Vitaliti answered ‘no’ to this question.

91. In making an application for a firearm, a person has to declare that he or she understands that it is a serious offence under the Firearms Act to make a statement or provide information that the person knows is false or misleading and the person is required to certify that all of the information contained in the application is true and correct in every detail.

92. I reject Mr Vitaliti’s evidence that he provided false information in 2013 and 2018 because the questions are confusing or that he was confused for the following reasons.

93. As set out in annexure C Exhibit 1A, Mr Vitaliti is an experienced businessman who operates two companies as a builder and a plumber and he has several licences. As part of his management of the companies, he operates in a regulated environment, having to comply with various laws, rules and regulations. As part of the management of the companies I infer that he would be familiar with forms, contracts and applications and would read and complete these with care and attention, and that if he did not understand a term, he would seek advice or assistance.

94. Mr Vitaliti’s evidence that he thought that question (2) in paragraph 89 above referred to whether he was currently on a ‘bond’ or subject to an AVO is inconsistent with a plain reading of the question. The question makes no reference to a ‘bond’.

95. Having answered a question incorrectly on the Application for a Personal Firearm Licence in 2013 and refused a firearm licence because he was subject of an AVO in the last ten years, Mr Vitaliti should have taken care to make certain that he answered the questions in the 2018 Application for a Personal Firearm Licence correctly. Mr Vitaliti signed a declaration that he did:

Understand that it is a serious offence under the Firearms Act 1996. Make a statement or provide information that I know is false or misleading and I certify that all the information contained in this application is true and correct in every detail.

96. The Application for a Personal Firearm Licence in 2013 put Mr Vitaliti on notice that he answered a question incorrectly. The question in the 2018 Application for a Personal Firearm Licence is straightforward:

1. Have you in NSW or elsewhere been refused or prohibited from holding a firearm licence or permit or had a firearms licence or permit suspended, cancelled or revoked? Mr Vitaliti answered ‘no’ to this question.

97. Mr Vitaliti’s evidence that the question is confusing was not explained. In my opinion, the question is not confusing and I reject that Mr Vitaliti answered the question incorrectly because the question was confusing to him or he misunderstood the question.

98. The Tribunal formed the view that Mr Vitaliti failed to grasp the importance of the firearm licencing process and how critical it was for the proper functioning of the scheme for licensees to provide true and correct information. Mr Vitaliti showed no remorse or insight into the importance of these concerns raised by the Commissioner.

99. The Tribunal is not satisfied that there is no risk that Mr Vitaliti would now exercise the requisite care and attention in providing true and correct information or that he would make sure that he complied with other aspects of the licencing scheme.

100. The Tribunal is also not satisfied that Mr Vitaliti has developed an understanding that the licencing system, including the application process, is part of a scheme that provides a measure of protection to the public consistent with the principles and objects of the Firearms Act. Mr Vitaliti failed to demonstrate that he grasped the importance of providing accurate and true information to the Commissioner to properly assess Mr Vitaliti’s suitability to hold a licence.

101. The failure to provide true and correct information in a material particular in connection with the application for the licence is not only contrary to s 23(2)(b)(i) of the Firearm Act but is also relevant to the question of public interest.

102. The Commissioner also submitted and the Tribunal agrees that s 70 of the Firearms Act is relevant in demonstrating the critical importance of providing information by the licensee which is true and correct. Section 70 carries a maximum penalty of 14 years imprisonment if the application relates to a firearm.

103. The Tribunal is satisfied that Mr Vitaliti either answered the question in the 2018 Application, knowing he was providing the incorrect information or was wilfully blind to the fact. Either way, it was a wilful act constituting knowledge. Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29; at 507-8, [17].

Driving Record

104. Mr Vitaliti’s driving offending started from when he on L plates and has continued consistently thereafter. The driving offending is serious. Mr Vitaliti showed no insight as to the seriousness of his most recent offending on 14 June 2020. Mr Vitaliti provided no explanation why he was driving more than 30 km/h above speed limit other than he was driving home and was overtaking a car.

105. I find that Mr Vitaliti’s disregard for the road rules demonstrate a lack of respect and regard for his own safety and that of the public, which is a relevant consideration in determining whether or not it is in the public interest for Mr Vitaliti to possess and use firearms.

106. A person’s traffic history may be a relevant consideration in determining whether a firearm licence should not be issued on the basis of public interest: Masterton vCommissioner of Police [2017] NSWCATAP 206 at [133]:

In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a licence on public interest ground … the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.

Criminal Record

107. None of the criminal history alleges the use of firearms. The criminal conduct is substantially historic, having occurred in 2005 and 2007 and the Tribunal gives limited weight to the offences. The Tribunal accepts Mr Vitaliti’s evidence that the criminal conduct occurred when he was a young man and the criminal record does not demonstrate that Mr Vitaliti has a disregard for the firearm scheme.

Mr Vitaliti’s Relationship with his Father

108. In 2006 and 2007 there was an allegation by Mr Vitaliti’s father that Mr Vitaliti had assaulted him. Mr Vitaliti has denied that he assaulted his father and said that he was acting in self-defence. In 2007, Mr Vitaliti was subject to an AVO for the protection of his father.

109. Mr Vitaliti relied on a written reference from his father that did not deny that Mr Vitaliti assaulted him but says that he ‘overreacted’ and deeply regretted putting his son through the criminal process.

110. Mr Vitaliti’s father has a criminal history and is subject to serious criminal charge listed for trial in May 2022, alleging violence and kidnapping. The criminal charge does not involve the use of a firearm.

111. The Commissioner submits that the fact that Mr Vitaliti maintains a close relationship with his father, who is a ‘known criminal’ is a consideration in affirming the decision to revoke his firearm.

112. There is no evidence that Mr Vitaliti’s father has a criminal history that is associated with a firearm or that Mr Vitaliti’s father may possibly have access to Mr Vitaliti’s firearms. Mr Vitaliti’s unchallenged evidence was that his father was never alone at his home, where the firearms were stored. There were no concerns raised about the manner in which Mr Vitaliti stored and maintained the safety of the firearms. Mr Vitaliti stored the firearms in a lock safe and was the only person with access to the keys. The bolt was kept out of the rifles and there are trigger locks were on the firearms.

Confidential Information

113. I have considered the confidential information and the submissions. The confidential information neither assists nor hinders the Commissioner’s submission that the correct and preferable decision is to affirm the decision of the Commissioner to revoke Mr Vitaliti’s firearm licence.

Conclusion

114. I have considered Mr Vitaliti’s conduct as a whole. I find that based on his extensive history of traffic infringements, including the most recent serious offence in June 2020 together with the supply of false information in his Category AB Firearm Licence application dated 7 August 2018, in regard to a question that was material to the application, the correct and preferable decision is that it is in the public interest for the Tribunal to affirm the decision of the Commissioner to revoke Mr Vitaliti’s firearm licence.

114. The Tribunal orders:

1. The decision under review is affirmed.

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

Registrar

Decision last updated: 14 January 2022