Whitfield v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 405

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Whitfield v Commissioner of Police, NSW Police Force [2022] NSWCATAD 405

Hearing dates:

1 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

(1) The decision under review is set aside.

(2) A Category ABHfirearmslicence is to issue to the Applicant.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing –- Domestic Circumstances - Public Interest

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:

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

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

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

Director of Public Prosecutions v Smith [1991] 1 VR 63

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

Lee v Commissioner of Police [2020] NSWCATAD 144 at [94]

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

Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206

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

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

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

Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Robert Whitfield (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/00143618

Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Confidential Statement of Senior Constable Kaluski is not to be published or released to the Applicant or the public.

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the contents of the Confidential Bundle of documents are not to be published or released to the Applicant or the public.

The contents of all paragraphs in these Reasons marked “[Not for publication]” are not to be published or released to the Applicant or the public.

REASONS FOR DECISION

Introduction

1. The Applicant seeks administrative review of the internal review decision of the Respondent dated 20 April 2022 which set aside the conditions placed on his Category ABH firearms licence and instead revoked the licence.

Background

2. On 20 May 2021, the Applicant's licence was suspended by the Respondent. The suspension was for 12 months and was due to expire on 20 May 2022

3. On 25 October 2021 the Applicant lodged an application for an internal review of the suspension condition imposed on the firearms licence on 20 May 2021.

4. On 20 April 2022, the internal review decided to set aside the conditions on the Category ABH firearms licence and decided to instead revoke the licence.

5. The suspension of the licence followed a report to the police, made by the Applicant on 26 February 2021, that the partner of his adult daughter intended to break into the Applicant’s family home and steal his firearms. On 25 October 2021, the Applicant sent an email to the Hon. Robert Borsak MLC, stating:

“I will never report anything to the police again ever. If anything untoward ever happens I'll report it after the fact. They know how to put the law-abiding owners offside. I will never trust the police again. I've spent nearly 30 years staying out of trouble and they repay my good behaviour with this rubbish”.

6. The internal review decision stated

Your email to the legislative council raises concerns in relation to your ability to properly consider and respect firearms legislation and its purpose. I do not believe that a person that makes such comments in response to police executing their duties possesses the requisite foresight or consideration to have access to firearms. In my opinion this attitude is not aligned with that expected of a person who wishes to retain the privilege of a firearms licence. I acknowledge that you were frustrated and perhaps you did not expect that police would suspend your firearms licence. However, it is deeply concerning to read of your unwillingness to report future events to police, particularly in the circumstances where persons who are in conflict with you have previously made a direct threat to commit acts of violence in order to steal your firearms and abduct the children in your custody. In my opinion, it poses a very real risk to public safety if any future incidents were unnecessarily complicated by your own actions and in my opinion, this is a critical issue for consideration when determining whether or not you should maintain your authorization for firearms. I do not believe this risk was adequately considered when the original decision maker lifted the suspension on your licence. Taking the above into consideration, I am of the opinion that public interest is best served with the revocation of your licence.

7. The licence was revoked in accordance with section 24 (2)(d) of the Firearms Act 1996 and Clause 20 of the Firearms Regulation 2017.

Respondent’s submissions

8. The Respondent submits, in part, “the licence should also be revoked pursuant to sections 24(2)(a), 11(3)(a), 11(4)(a) and 11(7)” and:

The Applicant’s criminal history includes prior offences of stealing, negligent driving, failure to report an accident, assault, escape from lawful custody, unlawful possession, possession of unlicensed and shortened firearms, possession of prohibited drugs, aggravated sexual and indecent assault, aggravated act of indecency with person under 16 years.

9. The Respondent relies on the confidential evidence of Senior Constable Kaluski. The Respondent also relies on confidential submissions and those are contained in a Confidential Bundle of documents.

10. The Respondent submits:

The Applicant's family and domestic circumstances as such that the Respondent is not satisfied that the Applicant is in a position to safely hold a firearms licence. The Applicant's family has a history of multiple instances of domestic violence, including stalking and incidents of violence… multiple ADVO have been taken out against the Applicant's daughter and the now deceased former partner Mr Grinham, in respect of the Applicant, Applicant's wife and the children. The Applicant also had an ADVO taken out against him on 30 March 2010.

11. The Respondent acknowledges there is no evidence that the Applicant has ever failed to comply with the safe storage or handling of firearms, or his prescribed licence club attendance requirement during the times he held a valid licence.

12. The Respondent submits that the Applicant is not a fit and proper person to be granted a firearms licence. This submission is based on his criminal history and his email of the 25th of October 2021. It is submitted that he has demonstrated a lack of cooperation with police and a history of aggressive behaviour which is inconsistent with the statutory principles and objects surrounding the issuing of a firearms licence. The Respondent submits the Tribunal cannot be satisfied that the Applicant does not pose a danger to public safety and the Tribunal cannot be satisfied the Applicant is a fit and proper person to hold a firearms licence.

13. The Respondent submits that the Tribunal cannot be satisfied that there is no risk associated with the granting of a firearms licence to the Applicant. Accordingly, the Respondents submits that it is not in the public interest for the Applicant to hold a firearms licence. This submission is also based on the Applicant’s criminal history and his interactions with the police.

Confidential evidence

14. [NOT FOR PUBLICATION]

15. [NOT FOR PUBLICATION]

16. [NOT FOR PUBLICATION]

17. [NOT FOR PUBLICATION]

18. [NOT FOR PUBLICATION]

19. [NOT FOR PUBLICATION]

20. [NOT FOR PUBLICATION]

21. [NOT FOR PUBLICATION]

22. [NOT FOR PUBLICATION

23. [NOT FOR PUBLICATION]

Applicant’s evidence

24. At the Tribunal hearing the Applicant gave sworn evidence and was cross examined. He said he and his wife have full custody of their six grandchildren. The children’s mother is his daughter Chauntelle. He said she is a drug addict and has been for many years. He said he has had custody of her children for 5 years. The eldest child has been with him and his wife for 17 years. He has had several Apprehended Violence Orders(AVO) against Chauntelle. The current AVO expires in March 2023. He said she had breached the Orders several times over the years. He was told Chauntelle, and her partner Michael Grinham, were planning to crash a vehicle into his house, steal his weapons and abduct the grandchildren. He said he informed the police and they took his weapons away and subsequently revoked his licence. He said he first obtained a firearms licence in 2015.

25. The Applicant said he wrote to the politician out of frustration at the police actions. He felt he was being punished for doing the right thing. He said Grinham is now dead. He said he and his wife allow Chauntelle access to the children in a safe location away from his home. The Applicant works as a bus driver. Five days a week, he collects children with disabilities from their homes, drives them to school and drives them home.

26. I asked the Applicant why he wanted a firearms licence. He said he enjoyed competition shooting and he likes to hunt. He started competition shooting as something to share with his son who also has weapons. He became the Range Safety Officer for the St Mary’s Indoor Shooting Centre and he produced character references from the Centre’s Operations Manager and from the Senior Trainer of the Star [Weapon] Training Academy.

27. He said “I would like the Tribunal to know I did everything to make myself a better shooter and weapons holder. I’ve never got angry. I’m aware of domestic violence and it’s a scourge. I’m not the angry young person I was”. He said he is not proud of his young offending. He said he doesn’t drink now. He said, “now I have respect for the law”. The Applicant then revealed that he had experienced institutional abuse as a child and young person. He said he had been through the formal Survivors of Institutional Abuse process and “I’m now believed”. He said as a young man he had not been believed and that had a very bad effect on him and his behaviour. He said he was sorry for the email to the politician, it was done out of frustration and he realised it was wrong. He also said that it was incorrect, in that he would report things to the police should they arise.

Legislative framework

28. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

29. Section 11 of the Act relevantly provides:

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3) A licence must not be issued unless -

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

...

(4)  Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of—

(a)  the Applicant’s way of living or domestic circumstances, 

…

(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.

Consideration and findings

30. Under s 63 of the Administrative Decisions Tribunal Act the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).

31. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised.

32. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the Respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest.

33. The Appeal Panel has described the "public interest" as "an inherently broad concept giving the appellant [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order 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 Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Huckel v Commissioner of Police [2008] NSW ADT 347, [41].

Way of living or domestic circumstances: section 11(4)(a)

34. Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner, and hence the Tribunal on review, has reasonable cause to believe that an Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living and domestic circumstances.

35. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43], the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 and New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32, and determined that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant’s domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearm.

36. The Respondent submits that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living and domestic circumstances. This submission principally refers to the Respondent’s concerns in relation to the Applicant’s criminal history and his relationship with his daughter Chauntelle. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.

37. The Applicant has a history of serious criminal offences, but it is at least 25 years old. His daughter is the subject of a current AVO and does not attend his home. I had the benefit of observing the Applicant give sworn evidence and be cross-examined. I asked questions of him myself. I found him to be candid, forthright and credible. I accept his evidence. In particular, I accept that he was a victim of institutional abuse as a child and that this resulted in him being an angry young man who came into conflict with the law. I accept that he is now a responsible person and has respect for the law. I also accept that he wrote to the politician out of frustration and that he sincerely regrets doing so and would not conceal information from the police or deliberately not cooperate with them. I have examined the confidential information. It is not significant. I consider the risk it raises is theoretical. I am not satisfied there is reasonable cause to believe that Chauntelle will take advantage of the domestic circumstances and that the Applicant may not personally exercise continuous and responsible control over his firearms.

The public interest: section 11(7)

38. The expression “public interest” is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

39. The Applicant requires a firearm to participate in competition shooting and to hunt. The sport shooting is more than a hobby, the Applicant has undertaken extensive training and has been appointed to responsible positions within the shooting organisation. It is an activity that he shares with his adult son. He has gone to considerable expense to install appropriate storage facilities in his home. He takes these matters seriously and the Respondent concedes his regulatory compliance at all times that he has held a licence.  Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an Applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] 1 VR 63. Accordingly, the Applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest.

40. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the “fit and proper person” test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. The question of risk is not to be viewed as requiring an Applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].

38. The principle in Ward is to the effect that 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

39. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration.

40. The Applicant gave sworn evidence and was cross-examined. He is a credible witness. I accept his evidence. He had a disadvantaged childhood and suffered abuse. He was not believed at the time but has recently been through the Institutional Abuse process and in his own words, is no longer an angry young man. I have examined the confidential information. It is of little substance. I consider the risk it raises is theoretical. I am satisfied the Applicant will personally exercise continuous and responsible control over his firearms. I am satisfied it is in the public interest for the Applicant to be issued a Category ABH firearms licence.

Fit and proper person – section 11(3)

44. Section 11(3) of the Act requires that the Tribunal be 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.

45. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

46. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a firearms licence the decision-maker is to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms

47. The Respondent submits the Applicant’s criminal history and his email to the politician and the confidential material makes him not a fit and proper person to hold a firearms licence. The serious criminal offences are more than 25 years old. Much has changed in the Applicant’s life since then. The confidential material is largely historic and / or insubstantial. The email was born out of frustration and is deeply regretted. The Applicant and his wife have for many years looked after and cared for their 6 grandchildren. The Applicant has demonstrated for several years a serious effort to learn about weapons and ensure their security. He has produced references from independent responsible firearms experts to that effect. He has always complied with the regulations concerning storage and training of his weapons. He works as a driver for disabled children. The Applicant has overcome a difficult childhood and youth, including institutional abuse, to become a responsible citizen. The Family Court saw fit to grant him sole care and custody of his 6 young grandchildren. I am satisfied 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.

48. For these reasons, I am satisfied that sections 24(2)(a), 11(3)(a), 11(4)(a), 11(7) and 24(2)(d) of the Firearms Act and Clause 20 of the Firearms Regulation, do not operate to exclude the Applicant from being granted or holding a firearms licence.

49. In summary, while the Tribunal can never be completely satisfied that there is no risk in an Applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding a firearms licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for him to hold a firearms licence, and I so find. Similarly, I am not satisfied there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over his firearms, and I so find. Furthermore, I am not satisfied the Applicant is not a fit and proper person to hold a firearms licence. In conclusion, I find the correct or preferable decision is to issue the Applicant with a Category ABH firearms licence.

Decision

1. The decision under review is set aside.

2. A Category ABH firearms licence is to issue to the Applicant.

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

Registrar

Decision last updated: 21 December 2022