Webel v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 149

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webel v Commissioner of Police, NSW Police Force [2023] NSWCATAD 149

Hearing dates:

15 February 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

(1) The decision under review is set aside.

(2) The application for a category AB firearms licence is granted on condition that he provides the Respondent with evidence to substantiate that has a genuine reason for possessing or using firearms.

Catchwords:

Administrative Law – firearms licence – refusal of licence application – whether applicant fit and proper person – whether in the public interest to hold a licence - whether the Applicant is of sound mind - whether the Applicant is able to exercise continuous and responsible control over firearms

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Criminal Injuries Compensation Act 1967

Crimes Act 1900

Cases Cited:

Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

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

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

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59

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

Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127

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

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

Minister for Immigration and Citizenship v Li [2013] 297 ALR 225

New South Wales v Taylor (2001) 178 ALR 32

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

R v Edmund George Webel (Unreported, Maxwell J, Supreme Court of New South Wales, 9 February 1988)

R v Field [1982] 1 NSWLR 488

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:

None cited

Category:

Principal judgment

Parties:

George Webel (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (Self Represented)
Makinson d'Apice Lawyers (Respondent)

File Number(s):

2022/00118299

Publication restriction:

Nil

Reasons for Decision

Introduction

1. This is an application for review of a decision by Mr George Webel (“the Applicant”) for review of a determination by a delegate of the Commissioner of Police (“the Respondent” or “the Commissioner”) under the Firearms Act 1996 (“the Act”). The delegate decided to refuse the Applicant’s application for a category AB firearms licence for the genuine reason of Recreational Hunting - Vermin Control.

2. The Applicant held a pistol licence under previous legislation from 1973 to 1978 and shooters licence from 1990 until 1993. He reapplied for a licence under the Act January 2020. The application was refused in April 2021. The decision to refuse the firearms licence was made on the basis that issue of the licence would be contrary to the public interest.

3. The decision was affirmed on internal review in March 2022. The internal review reasons for decision noted that:

(a)    The Applicant had previously been known as Edmund George Webel but he failed to disclose being known by another name in his firearms license application.

(b)   The Applicant was twice refused an authority for firearms in 1978. He did not disclose this refusal on his application form.

(c)   In 1985, the Applicant was tried for the murder of his wife, Eva Webel. He was acquitted of that offence.

(d)   The Applicant was previously a pistol club member, and he was authorised to possess a number of handguns.

(e)   In April 2004, while in police custody, the Applicant disclosed that his health suffered as a result of being charged and that he had a nervous breakdown. He was prescribed antianxiety medication.

(f)   Dr Robert Wiles, who has been the Applicant’s GP since 2016, stated that he has no knowledge of any mental illness or instability; and that it is his opinion that the Applicant is of sound mind.

(g)   Information provided by the Applicant suggests that he relocated to Queensland and established a licenced firearms dealership there.

(h)   In March 2022 a condition was added to the Applicant’s NSW driver’s licence due to a ‘Musculo - Skeletal Disorder’.

4. The Applicant has applied to this Tribunal for external review

The issue for determination

5. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner’s decision and, specifically, whether the Applicant is a fit and proper person to have a firearms licence, and whether it is contrary to the public interest for the Applicant to hold a licence under the Act.

The Tribunal’s Approach

6. The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it, or set it aside and substitute another. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decision Review Act 1997 (“the ADR Act”).

7. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the Commissioner’s decision is correct.

8. These are not adversarial proceedings in which the Applicant carries an onus of proof. By making the application, the Applicant triggers a process of merits review by the Tribunal. He does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities.

9. Under section 38(2) of the Civil and Administrative Tribunal Act 2013, 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.

10. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].

11. The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant.

Applicable legislation

12. Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal’s jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.

13. This application is made under section 75 of the Act and the ADR Act.

14. The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.

15. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

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

16. The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:

[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less.

...

17. Section 11(3)(a) of the Act prescribes that a firearms licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

18. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.

19. Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

20. The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Recreational Hunting/Vermin Control". Relevantly, section 12 provides:

1. Genuine reasons for having a licence

2. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

...

1. Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant—

   (a)   states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

   (b)   is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

Reason: recreational hunting/vermin control

The applicant must—

(a)   be the owner or occupier of rural land, or

(b)   produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land, or

(b1)   produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or

(c)   be a current member of a hunting club approved by the Commissioner in accordance with the regulations.

The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned.

...

21. As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The expression “fit and proper person” has been considered in numerous decisions of this Tribunal.

Fit and proper person

22. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.

23. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

24. In the context of the Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].

25. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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.

26. They went on to say at 388:

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.

27. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

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 devolving 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.

28. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

"The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

Public interest

29. Section 11(7) of the Act provides:

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.

30. As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence:

"25 The “public interest” is an inherently broad concept giving the appellant 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 elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

31. The “public interest” allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

32. “Public interest” embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

33. In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].

34. The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.

35. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]:

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. ...

36. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].

37. 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

Continuous and responsible control over firearms

38. The Respondent also contends that the Applicant may not personally exercise continuous and responsible control over firearms.

39. Section 11(4)(c) of the Act prescribes that the Commissioner must not issue a licence to a person if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's intemperate habits or being of unsound mind.

40. The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43] where the Tribunal stated:

1. The term “reasonable cause to believe” has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated:

   “[10] There is no dispute as to the nature of the task that arises under r6(a). The words, ‘where there is reasonable cause to believe that the application has or may have the right to obtain relief’ are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief”.

2. In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term “no reasonable cause to believe” as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated:

   “It is true that the notion of ‘reasonable cause’, although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments.”

3. In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY’s domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.

   41. In my view, to have "reasonable cause to believe" there must be more than mere suspicion or conjecture.

   42. The term "unsound mind" is not defined in the Act. Deputy President Hennessy considered the expression in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185. She stated at paragraphs [25] - [27]:

4. The first question is whether Mr Sweet post traumatic stress disorder amounts to “unsound mind” given the purpose of the legislation. Mr Sweet has a recognised mental condition which can be regarded as a mental disorder. It is not trivial in its nature.

5. One of the principles of the Act, as set out in s 3(1)(a), is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety.

6. The term “unsound mind” must be interpreted in the context of this principle. To be of “unsound mind” a person’s mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...

Material before the Tribunal

43. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. This material includes a number of records held in the Respondent’s electronic database (“COPs”). The Respondent also relies on the Supreme Court decision in matter number 85/09/0004 as well as the transcript of evidence and summing up given by Maxwell J in that case. The Respondent also relies on reasons given by Maxwell J in case BC8802224 on 9 February 1988. That matter was an application under the Criminal Injuries Compensation Act 1967 case BC8802224 on 9 February 1988.

44. The Respondent’s solicitors also provided written submissions.

45. The Applicant relies on his own evidence and submission, references from long term acquaintances and a certificate provided by Dr Robert Wiles. The Applicant attended the hearing and gave evidence. He was not cross-examined.

The Respondent’s Case

46. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the licence that the Applicant is seeking. The Respondent bases her position on the grounds that the Applicant is a not a fit and proper person to have a firearms licence, and that it is contrary to the public interest for him to do so. The Respondent points to several issues in support of her position.

1. The Applicant failed to disclose being known by another name in his firearms licence application.

2. The Applicant failed to disclose that he was twice refused an authority for firearms in 1978.

3. The Applicant was tried for the murder of his wife. Notwithstanding that he was acquitted of the murder, the Tribunal should find that he committed the offence.

4. In April 2004, the Applicant disclosed that he had suffered a nervous breakdown and there is reasonable cause to believe that the Applicant is of unsound mind.

5. In March 2022 a condition was added to the Applicant’s NSW driver’s licence due to a ‘Musculo - Skeletal Disorder’.

Failure to disclose being known by another name

47. In each of the matters before the Supreme Court that the Respondent has identified, the Applicant is identified as Edmund George Webel. On his application for a firearms licence he identified himself as George Webel and indicated that he has not previously been known by any other name. He also declared that the information that he had provided in the application was true and correct.

48. The Respondent submits that the efficient operation of the firearms legislative scheme depends on licensees and applicants providing true and correct information and the Firearms Registry being able to rely on the accuracy of information supplied by licensees and licence applicants. Applicant's failure to provide accurate and sufficiently detailed information shows that he cannot be trusted to uphold the legislative scheme within which he is required to operate.

Failure to disclose refusal of an authority for firearms

49. The Respondent accepts that the Applicant held a pistol licence under previous legislation. The evidence show that the Applicant was twice refused an authority for firearms in 1978. On his application for a firearms licence he wrongly indicated ‘No’ to the question of whether he had “been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked”.

50. In regard to this failure the Respondent also submits that the Applicant's failure to provide accurate and sufficiently detailed information shows that he cannot be trusted to uphold the legislative scheme within which he is required to operate.

The murder of the Applicant's wife

51. The Applicant's wife was murdered in October 1983. As noted above, the Applicant was charged and acquitted of the murder. However, the Respondent submits that, in these proceedings, the Applicant is not entitled to contend that he did not murder his wife. This submission is based on views expressed by Maxwell J in R v Edmund George Webel (Unreported, Maxwell J, Supreme Court of New South Wales, 9 February 1988).

52. In that matter, Maxwell J dealt with an application by the Applicant’s then mother-in-law for compensation pursuant to section 4 of the Criminal Injuries Compensation Act 1967. Section 4 stated:

(1) On the acquittal of, or dismissal of an information against, a person accused of any felony, misdemeanour or other offence, the Court or Judge before whom that person was tried may, on application by a person aggrieved by reason of the commission of the offence, grant a certificate stating the sum which they or he would have directed to be paid to the aggrieved person by way of compensation for injury had the accused person been convicted of the felony, misdemeanour or other offence and had the application been an application made by the aggrieved person under the provisions of section four hundred and thirty-seven or subsection three of section five hundred and fifty-four, as the case may be, of the Crimes Act 1900, as amended by subsequent Acts, for the payment of that compensation.

(2) A certificate shall not be granted under subsection one of this section where the sum referred to in that subsection amounts to one hundred dollars or less.

(3) An aggrieved person to whom a certificate under subsection one of this section has been granted may make application to the Under Secretary for payment to him from the Consolidated Revenue Fund of the sum specified in the certificate.

53. In determining the application, it was necessary for Maxwell J to consider whether, had the Applicant been convicted, he would have directed that compensation for injury be paid to the aggrieved person. Justice Maxwell concluded:

l am satisfied on the balance of probabilities that an offence was committed. So far as the trial jury was concerned, their requirement was to be satisfied beyond reasonable doubt that the particular offence had been committed. It suffices to say that having presided over the trial and having again read the summing-up, whilst it was open to the jury to acquit the accused I am satisfied on the balance of probabilities that the respondent was guilty of an offence and, therefore, the Applicant is entitled to the order sought.

54. The Respondent referred to a number of authorities in support of the submission that:

Accordingly, prima facie, the decision in R v Edmund George Webel (Unreported, Maxwell J, Supreme Court of New South Wales, 9 February 1988) provides this Tribunal with adequate material for its own conclusion that the Applicant murdered his wife.

If the Applicant wishes to challenge that finding, the Tribunal should hear the challenge and give such weight to it as the Tribunal thinks fit. The finding of Maxwell J provides a strong prima facie case which throws a heavy burden on the Applicant should he seek to rebut the finding.

55. The Respondent further submitted:

[T]he Applicant remains a suspect in the unsolved homicide of his wife, Eva Webel. Although the Applicant was acquitted of the charge of ‘Murder’, the fact that the Applicant remains a suspect in the unsolved homicide investigation is clearly information that gives rise to an indication that it is against the public interest for the Applicant to hold a license. As noted by the Commissioner, there is no onus of proof attached to the administrative function of refusing an application. If there is information available that gives rise to an indication that it is against the public interest for an Applicant to hold a license, those concerns must be taken at their highest value.

... Clearly, there is considerable risk to public safety in permitting a person who remains a suspect in the investigation of a serious violent crime to be granted the privilege of holding a firearms license.

56. The Respondent submitted that the views expressed by Maxwell J indicate that there is a high degree of probability that the Applicant murdered his wife. Further, the fact that the Applicant evaded conviction raises concerns that there may be other offences that have not been disclosed.

Whether the Applicant is of unsound mind.

57. The Respondent contends there is reasonable cause to believe that the Applicant is of unsound mind. This appears to be based on a comment that the Applicant is alleged to have made in 2004. The Respondent’s written submissions stated that:

In refusing the firearms license, the Commissioner noted that information maintained by the NSW Police Force revealed that while the Applicant was in police custody on 29 April 2004, he was asked a series of questions regarding his health. In response to the question ‘Do you have any other serious medical or mental problems?’ the Commissioner noted that the Applicant replied “yes” and further informed police, “I was charged with murder and my health suffered as a result. I suffered and had a nervous breakdown. I was on Mogadon and Serepax for years”.

The Commissioner considered that the Applicant’s mental health admission raised significant concerns for public safety should he be issued with a license and determined to refuse the firearms license application on these grounds.

58. The Respondent’s contention is that there is reasonable cause to believe that the Applicant is of unsound mind, and that he may not personally exercise continuous and responsible control over firearms.

The Applicant's drivers licence condition

59. The Respondent’s material indicates that in March 2022 a condition was added to the Applicant’s NSW driver’s licence due to a ‘Musculo - Skeletal Disorder’. The Respondent also noted that the Applicant was in possession of a parking mobility card in 2004.

60. The Respondent’s contention is that the Applicant’s physical health may prevent him from exercising safe control over firearms.

61. It is submitted that the Tribunal cannot be satisfied that the Applicant is a fit and proper person to hold a firearms licence and that given the totality of the evidence, it cannot be said that the Applicant poses virtually no risk to public safety. As such, the Tribunal must find that the Applicant is not a fit and proper person to hold or continue to hold a firearms licence in the circumstances and that it is not in the public interest for him to do so.

The Applicant’s case

62. The Applicant attended the hearing and gave evidence. He provided submissions and answered each of the issues that were raised by the Respondent.

Failure to disclose being known by another name

63. The Applicant said that he is eighty years of age, and his memory is not as good as it used to be. He said that he has no recollection of ever using the name Edmund George Webel. He said that he has always identified himself as George Webel and he provided references from acquaintances who have known him by that name for around 60 years.

64. The Respondent did not challenge any of this evidence.

Failure to disclose refusal of an authority for firearms

65. As noted, the Applicant said that his memory is not as good as it used to be. He was not aware of any licence suspensions or cancellations. He noted that he was issued a firearms licence after his acquittal for the murder of his wife, and he also held a firearms dealers’ licence in Queensland in 1994-95 until he was robbed at gunpoint.

66. The Respondent did not challenge this evidence.

The murder of the Applicant's wife

67. As noted above, the Applicant was charged and acquitted of the murder of his wife. His evidence was that he has never committed a violent act and that he has always preferred to walk away. He has never been convicted of any violent act. He also noted that his children had both given evidence that he had never been violent towards his wife.

68. In regard to the views expressed by Maxwell J to which the Respondent referred, the Applicant’s evidence was that he had not heard of that case before it was raised by the Respondent. He was not aware of the hearing, and he did not know what it was about. He said that he did not participate in the hearing in any way and has never been approached by anyone to pay compensation to his former mother-in-law.

69. The Respondent did not cross-examine the Applicant and did not challenge any of this evidence.

Whether the Applicant is of unsound mind.

70. In response to the Respondent’s contention that there is reasonable cause to believe that he is of unsound mind, the Applicant provided a certificate from his GP, Dr Robert Wiles. Dr Wiles stated that he has been treating the Applicant since 2016 and he reviewed medical records dating to 2010. He said that he has no knowledge of any mental instability or mental illness and considers that the Applicant is of sound mind.

71. The Applicant does not dispute that he might have indicated that he had had a nervous breakdown. He said that he has since been advised that a Nervous Breakdown does not constitute a medical term. He explained that it was following the death of his father that he had been prescribed Mogadon and Serepax to help him sleep.

72. Dr Wiles was not called for cross-examination and his certificate was not challenged.

The Applicant's drivers licence condition

73. The Applicant does not dispute that a condition has been added to his driver’s licence or that he has had a parking mobility card. However, his evidence is that at times his condition affects his ability to walk but, otherwise, he functions normally. He noted that he was a member of the Sydney Security Pistol Club and that there was a member in a wheelchair.

74. The Respondent did not cross-examine the Applicant and did not challenge this evidence.

75. The Applicant contends that the is no risk to the pubic if he is given access to firearms. He stated that he would have understood if the application had been refused after the trial, but he was issued authorities five years later. There is no evidence to suggest that he ever misused his firearms.

Discussion

76. In this matter the Respondent contends that the Applicant is not a fit and proper person to have a firearms licence and if he were to do so it would be contrary to the public interest. In support of her position, the Respondent has raised a number of issues which need to be considered.

Failure to disclose being known by another name

77. It is apparent from the material before me that the Applicant has been known by the name Edmund George Webel. In fact, he applied for a pistol licence in that name in 1978. The issue for the Tribunal is what, if any, implications should be drawn from the failure to declare the use of that name.

78. The Applicant has stated that he does not recall using any name other than George Webel. He also provided statements from three individuals who have known him for many years who each stated that they have only known him by the name George Webel.

79. There is no basis on which I could conclude that the Applicant has deliberately attempted to mislead the Respondent by not declaring the use of the name Edmund George Webel. As noted above, the elements of fitness and propriety are honesty, knowledge, and ability: Hughes and Vale Pty Ltd v New South Wales (No. 2). In the circumstances of this matter, I am not satisfied that the Applicant was deliberately dishonest in failing to make this disclosure. I am not satisfied that the failure has any implications in regard to public safety or in any other way affects the public interest.

80. While I accept that the Applicant failed to disclose the use of another name, I give minimal weight to this issue.

Failure to disclose refusal of an authority for firearms

81. The Respondent’s evidence is that the Applicant was twice refused an authority for firearms in 1978. He did not disclose these refusals on his licence application form.

82. The Applicant’s evidence is that his memory has deteriorated. It is not surprising that he might not remember refusals from 1978 in circumstances where he was subsequently granted a shooters licence.

83. There is no basis on which I could conclude that the Applicant has deliberately attempted to mislead the Respondent by not declaring those refusals on his licence application. I am not satisfied that the Applicant was deliberately dishonest in failing to make this disclosure. I am not satisfied that the failure has any implications in regard to public safety or in any other way affects the public interest.

84. While I accept that the Applicant failed to disclose the 1978 refusals, I give minimal weight to this issue.

Whether the Applicant is of unsound mind.

85. The Respondent’s assertion that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because he is of unsound mind appears to arise solely from a comment that he made in 2004. As noted, the Respondent’s record shows that the Applicant is said to have made the statement “I was charged with murder and my health suffered as a result. I suffered and had a nervous breakdown. I was on Mogadon and Serepax for years”.

86. There is no evidence before me that explains what symptoms were associated with what was described as “a nervous breakdown”. Similarly, there is no evidence before me that indicates whether the Applicant suffered any effects from the use of Mogadon and Serepax. The Respondent has given no evidence on which I could conclude that a statement made in 2004 about a nervous breakdown and the use of Mogadon and Serepax would in 2023 give rise to a reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because he is of unsound mind.

87. In any event, the Applicant has provided a statement from Dr Robert Wiles who is of the opinion that the Applicant is of sound mind. Dr Wiles has been the Applicant’s GP since 2016 and he reviewed the Applicant’s medical records back to 2010. He stated that he has no knowledge of any mental illness or instability on the Applicant’s part. This evidence is unchallenged.

88. It is unclear to me how the Respondent, as a model litigant, was able to form the view that there is reasonable cause to believe that the Applicant is of unsound mind or to make that submission.

89. I give no weight at all to this contention.

The Applicant's drivers licence condition

90. It is not in dispute that the Applicant’s NSW driver’s licence contains a condition due to a ‘Musculo - Skeletal Disorder’ or that the Applicant has been in possession of a parking mobility card. The Respondent’s contention is that the Applicant’s physical health may prevent him from exercising safe control over firearms.

91. The Applicant disputes this contention. This evidence is unchallenged. There is no evidence before me that suggests there is any reason to conclude that these conditions would in any way prevent the Applicant from exercising safe control over firearms.

92. I give no weight to this contention.

The murder of the Applicant's wife

93. It is common ground that the Applicant was charged and acquitted of the murder of his wife after a trial before a jury. The Respondent notes that the acquittal was at the criminal standard (beyond reasonable doubt), and that the civil standard (balance of probabilities) is applicable in these proceedings. A submission was made to the effect that the Tribunal only needs to be satisfied to the civil standard that the Applicant was guilty of the murder.

94. In support of that contention, the Respondent relies on comments made by Maxwell J in case BC8802224. In that matter, Maxwell J dealt with an application for compensation pursuant to section 4 of the Criminal Injuries Compensation Act 1967. Section 4 dealt with the situation where an accused person was acquitted of a ‘felony, misdemeanour or other offence’. The presiding Judge could grant a certificate which stated what compensation may have been payable had the accused person been convicted. The recipient of the certificate could apply for payment of the sum specified in the certificate from the Consolidated Revenue Fund.

95. By its use of the words “on application by a person aggrieved by reason of the commission of the offence”, section 4(1), presupposes that an offence has in fact been committed by someone against the applicant for a certificate. There is no doubt that the Applicant’s wife was murdered by someone. The Applicant was acquitted of the murder because the jury was not satisfied beyond reasonable doubt that he was guilty. Therefore, the provisions in section 4(1) were satisfied and the applicant for a certificate would have been entitled to receive a certificate under section 4 if she was a person aggrieved by the offence.

96. The provision is concerned with compensating a person allegedly aggrieved and not with punishment of any offender. In that situation, the court or the judge is not bound by the verdict of the jury. Notwithstanding that verdict, the judge must determine upon a balance of probabilities whether the offence in question has been committed by someone: R v Field [1982] 1 NSWLR 488. In R v Field Yeldham J stated at page 491:

[I]n determining whether or not to grant a certificate under the Criminal Injuries Compensation Act s 4, the court should apply the civil standard of proof not only in relation to quantum but also in relation to the question whether an offence has been committed against the applicant.

97. Yeldham J continued:

If “the commission of the offence” by someone againt (sic) the applicant fell to be determined beyond reasonable doubt then it would seem that the jury’s verdict in many, if not most, cases would preclude the grant of any certificate. The only exceptions which spring to mind are those concerning identity (including cases where alibis are raised) where someone has committed an offence against the applicant but that person’s identity has not been established.

98. As noted, Maxwell J concluded:

l am satisfied on the balance of probabilities that an offence was committed. … whilst it was open to the jury to acquit the accused I am satisfied on the balance of probabilities that the respondent was guilty of an offence ...

99. Maxwell J was satisfied that the Applicant was guilty of an offence but there is no discussion to indicate the nature of the offence or how he arrived at that view. He did not indicate that he believed that the Applicant had murdered his wife. He merely stated that the Applicant was guilty of “an offence”. In his summing up to the jury he identified evidence that may have given Maxwell J reason to believe that the Applicant was guilty of an offence other than murder. For example, he referred to a witness having given evidence that the Applicant asked him:

"You wouldn't know by any chance anyone who would knock off someone for a price?"

100. The reliability of that witness was called into question, but it is possible that Maxwell J was satisfied that the Applicant was guilty of an offence under section 26 of the Crimes Act 1900 which relates to conspiring to commit murder.

101. I have no material before me that indicates whether or not the Applicant was charged with any other offence in addition to the murder charge. In any event, the exception referred to by Yeldham J is relevant to this matter. That is, where someone has committed an offence, but that person’s identity has not been established.

102. The Applicant’s evidence was that he was not aware of the compensation case before it was raised by the Respondent. He did not participate in the hearing in any way and did not have the opportunity to present any case to contradict the view that he was guilty of the offence. The Respondent did not cross-examine the Applicant on this issue and has not presented any material to contradict his evidence. In the circumstances, I do not agree with the Respondent that the views expressed by Maxwell J indicate that there is a high degree of probability that the Applicant murdered his wife. There is a presumption of innocence in criminal proceedings. It is not for an accused to establish their innocence and there can be no doubt that the Applicant was acquitted of the charge at the criminal standard.

103. It is not in dispute that, in 1990, the Applicant was granted a shooters licence under the Act. The Applicant’s evidence is that he also held a firearms dealers’ licence in Queensland. Clearly, both of those licences were granted after the Applicant was acquitted of the murder charge and after the compensation matter was determined. It is reasonable to assume that the Respondent would have been aware of the murder charge and acquittal and that it would have been considered when the firearms licence was granted in 1990. I accept that the Respondent may not have been aware of the compensation matter at that time. However, the Applicant was not aware of it either so no criticism can be directed towards him for not disclosing Maxwell J’s decision.

104. It is not in dispute that the Applicant held a pistol licence from 1973 to 1978 and shooters licence from 1990 until 1993. There is no evidence before me of any issues related to those licences or that the Applicant has ever misused firearms. The Respondent accepts that the Applicant has not engaged in any conduct that has brought him to the attention of police at any time since 1985.

105. The Respondent has asserted that the Applicant remains a suspect in the investigation of murder. However, no evidence has been presented to support that assertion. The Respondent could have provided evidence to support that assertion on a confidential basis but did not do so. The Applicant denied that he did any act giving rise to the death of his wife. He is entitled to maintain his innocence: see discussion in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at paragraph [63].

106. In these circumstances, notwithstanding the views expressed by Maxwell J in in case BC8802224, I am satisfied that the Applicant is a fit and proper person to hold a firearms licence. I am not satisfied that it would be contrary to the public interest for him to do so. I am satisfied that there is virtually no risk to public safety if the application is granted.

107. It follows that the correct and preferable decision is to set aside the decision under review. In its place the decision should be made that the licence application is granted.

108. The Applicant's application nominated his genuine reason for a firearms licence as "Recreational Hunting/Vermin Control" and he indicated his ownership/occupation of rural land to substantiate that genuine reason. The Applicant would need to provide the Respondent with relevant documentation to show his current circumstances before the licence could be issued.

Orders

1. The decision under review is set aside.

2. The application for a category AB firearms licence is granted on condition that he provides the Respondent with evidence to substantiate that has a genuine reason for possessing or using firearms.

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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: 16 June 2023