Zreika v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 361

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zreika v Commissioner of Police, NSW Police Force [2024] NSWCATAD 361

Hearing dates:

5 October 2023 and 27 November 2023

Date of orders:

2 December 2024

Decision date:

02 December 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Mobbs, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

LICENSING - firearms ––licence revocation –public interest – fit and proper person.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

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

Bettington v Commissioner of Police [2021] NSWCATAP

Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384

Comalco Aluminium (Bell Bay) Ltd v O’Connor (No 2) (1995) 131 ALR 657

Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9

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

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] Vic Rep 6; (1991) 1 VR 63

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

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

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145

Lynch v Commissioner of Police, New South Wales Police (GD) [2006] NSWADTAP 43

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

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

McDonald v Director-General of Social Security (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210

Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27

Saxby v Commissioner of Police [2021] NSWCATAD 275

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

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

Category:

Principal judgment

Parties:

Rashid Zreika (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
J Ghabrial (Applicant)

Solicitors:
Velasquez Legal (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2022/00386055

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Rashid Zreika (the Applicant) was the holder of a category AB licence (licence) under the Firearms Act 1996 (NSW) (the Act) that was issued to him on 9 September 2017 and was to expire on 16 October 2022.

2. On 2 May 2022, the Applicant’s licence was revoked by a delegate of the Commissioner of Police, NSW Police Force (the Respondent) as the delegate was of the view that the Applicant was no longer a fit and proper person and that it was not in the public interest for him to continue to hold a licence.

3. The Applicant subsequently sought internal review of that decision by way of requests dated 12 May 2022 and 9 August 2022.

4. In a decision dated 25 November 2022 (the Decision), a delegate of the Respondent affirmed the decision to revoke the Applicant’s licence on varied grounds.

5. On 22 December 2022, the Applicant applied to this Tribunal for administrative review of the Decision. No issue was taken by the parties in relation to the jurisdiction of the Tribunal in this matter.

Application for confidentiality order

6. In the written submissions for the Applicant, an order was sought under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) that the name of the Applicant and the name of any other person that would identify the name of the Applicant not be published or broadcast without the Tribunal’s leave. The reasons for the application were set out in the written submissions and referred to the sensitive nature of the information before the Tribunal, the majority of which had not been proven to the criminal standard. It was submitted that the damage to the Applicant’s reputation and business would be irreparable if his identity in these proceedings was revealed and it was for this reason that the Applicant submitted that it was “desirable” for the order under s 64(1) of the NCAT Act to be made.

7. This Application was opposed by the Respondent. It was submitted that the reason relied upon by the Applicant was not a proper basis on which the Tribunal ought to proceed and make such an order and that the Tribunal regularly deals, particularly in firearms licencing matters, with the conduct of the kind to be addressed in this proceeding and which is not proven to the criminal standard (noting that the Tribunal is not a criminal court). It was further submitted that the Applicant had not adduced sufficient evidence as to his personal and business reputation and any harm to them that may arise as a result of a judgment in these proceedings. It was submitted that in circumstances where the Applicant filed the proceedings and proceedings concerns his application for a licence, the Applicant is not “defending” his reputation and must convince the Tribunal that it is “desirable” to make the requested order and that he had not done so.

8. Further oral submissions on this issue were made by the parties at the hearing of this matter, including that the potential harm to the Applicant could be inferred from the circumstances of this matter, and I have given consideration to them.

Consideration

9. Section 64 of the NCAT Act provides as follows:

64   Tribunal may restrict disclosures concerning proceedings

(1)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a)  an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)  an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)  The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)  The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

10. I have had regard to the Tribunal decision in Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 (Pendrick) and to the decision in Bettington v Commissioner of Police [2021] NSWCATAP 110 where the Appeal Panel refers to the test in s 64(1) of the NCAT Act at [40] – [41] as follows:

40.   In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, the Court of Appeal highlighted the differences between the powers of the Tribunal under s 64 of the NCAT Act and those of courts under the Court Suppression and Non-publication Orders Act 2010 (NSW). In particular, the NCAT Act does not have an equivalent provision to s 6 of the the Court Suppression and Non-publication Orders Act 2010 (NSW):

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

41. Nor is there any express statutory requirement in the NCAT Act for the circumstances to be “special” or “extraordinary” before orders may be made under s 49 or s 64. We do not understand the Supreme Court in Bellamy v Bellamy  [2018] NSWSC 534 or the Appeal Panel of the ADT in State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 to have intended to substitute a different legal test for the test set out in those provisions. In our view, the learned judge and members of the ADT used those words to emphasise that the fundamental principles of open justice and procedural fairness should not readily be displaced. However, just as “[T] he words of a Minister must not be substituted for the text of the law”, so the words of a judge or other decision maker must not be substituted for the plain meaning of the words in a legislative provision: Re Bolton; Ex Parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ). The words “special” or “extraordinary” should not displace the natural and ordinary meaning of the words in s 49 and s 64 of the NCAT Act.

11. The principles of open justice are well established and s 49(1) of the NCAT Act provides that a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise. There was no application by the Applicant for the hearing in this matter to be conducted wholly or partly in private pursuant to s 49(2) of the NCAT Act and the hearing on both days was open to the public.

12. The Tribunal in Pendrick set out a number of principles [at 130] including that “Subsection 64(1) of the NCAT Act, and the question of what is “desirable” under that provision, is to be applied bearing in mind the principle of open justice and the rules of procedural fairness”.

13. The Administrative and Equal Opportunity Division Guideline relating to “Confidentiality, privacy and publication” dated September 2022 appears on the Tribunal website and makes clear that Tribunal hearings are open to the public, unless the Tribunal makes an order restricting access to a hearing. It also states that the Tribunal publishes most of its decisions on the NSW Caselaw website and published decisions give the names of the parties and witnesses unless they are anonymised. NCAT Policy 2 dated October 2019 relating to “Publishing Reasons for Decisions” is also available on the Tribunal website and notes that “the Administrative and Equal Opportunity Division routinely publishes the written reasons for decision, unless the presiding Member has made an order prohibiting or restricting publication.” It is evident that this matter is being dealt with in the Administrative and Equal Opportunity Division.

14. This proceeding arises from the review application filed by the Applicant on 22 December 2022 seeking review of the Decision of the Respondent to revoke the Applicant’s licence under the Act. The genuine reasons for which the Applicant was issued with a licence were for Sport/Target Shooting and Recreational Hunting/Vermin Control and there is no evidence before the Tribunal that the Applicant’s licence relates to his business interests in any way. The Applicant did not adduce any evidence in relation to his personal and business reputation other than some limited reference to his occupation and business in the character references. No evidence was adduced in relation to any harm or damage that may be caused to the Applicant’s reputation or business if his name was published in relation to these proceedings.

15. Whilst I accept that a number of the matters relied upon by the Respondent had not been proved to the criminal standard, the Tribunal is able to have regard to such conduct in administrative review applications, and it is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 (Esterman) at [30].

16. As will be seen from the reasons for my decision in the substantive proceedings, I have not been required to consider all of the grounds relied upon by the Respondent in this matter, or all of the evidence relied upon in support of all of the grounds. As a consequence, much of the material that was the subject of the submissions by the Applicant in relation to the application for an order pursuant to s 64 (1) of the NCAT Act, is not explicitly referred to, or considered, in these reasons. It follows that my consideration of the order sought by the Applicant ought to be limited to the material that is contained in the reasons.

17. As a consequence, I am not satisfied that the material referred to in these reasons is of such a confidential nature, or sufficiently sensitive, as to make it desirable to grant an order prohibiting the name of the Applicant in these proceedings or to require any order under s 64(1) of the NCAT Act to be made. In reaching this view, I have had particular regard to the presumption of open justice and to the absence of any evidence in relation to any harm to the Applicant’s personal and business reputation that may arise if an order under s 64(1) of the NCAT was not made. Given that I am not satisfied that it is desirable to make such an order, the order sought by the Applicant pursuant to s 64(1) of the NCAT Act is refused.

18. Notwithstanding my decision in this regard, in order to protect the anonymity of certain third persons in these reasons, I will refer to the third persons by reference to their relationship with the Applicant. References to the Applicant’s address and to his work and work history will also be referred to in these reasons in general terms only.

Applicable legislation

19. The general principles and objects of the Act are set out in s 3 as follows:

(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.

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

(a)  to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

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

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)  …

20. Section 11 of the Act relevantly provides:

11   General restrictions on issue of licences

…

(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, and

…

(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, or

…

(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.

…

21. Section 24 of the Act sets out the various grounds on which a licence may be revoked and s24(2) relevantly provides as follows:

(2)  A licence may be revoked—

(a)  for any reason for which the licensee would be required to be refused a licence of the same kind, or

(b)  if the licensee—

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

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

(iii)  contravenes any condition of the licence, or

…

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

22. Clause 20 of the Firearms Regulation 2017 (NSW) (the Regulation) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

The evidence

23. The matter was heard over the course of two separate hearing dates, namely 5 October 2023 and 27 November 2023.

Applicant’s evidence

24. The Applicant relied on his affidavit dated 11 May 2023 and annexures (exhibit A1); a statutory declaration from his father dated 11 May 2023 (exhibit A2); a statutory declaration from the Applicant’s previous employer dated 11 May 2023 (exhibit A3); a testimonial from another previous employer dated 11 May 2023; a testimonial from a professional associate dated 11 May 2021; a testimonial in the form of a digitally signed letter from the Applicant’s cousin dated 10 May 2023; and a testimonial from the Applicant’s accountant dated 10 May 2023 (the latter four testimonials being exhibit A4).

25. The Applicant also relied on an affidavit of Ms Carla Velasquez dated 12 May 2023 in relation to the electronic witnessing of a number of documents (exhibit A5) and a bundle of documents obtained on behalf of the Applicant following an access application made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) (exhibit A6). It appeared that a number of the documents that were electronically witnessed by Ms Velazquez may not have strictly complied with the requirements for the witnessing of such documents but were nonetheless admitted into evidence.

26. The original of the Applicant’s work licence was tendered (exhibit A7).This licence was returned to the Applicant’s legal representative on the basis that a copy was to be provided to the Registry. Whilst I have not been able to locate a copy on the file, I am satisfied from having viewed the original, that the Applicant was the holder of such a licence at the time of the hearing.

27. A copy of the Applicant’s membership with the Hunters and Fishers Association was also adduced indicating that the Applicant was a member of that association from 18 July 2017 and that his membership expired on 17 July 2025 (exhibit A8). A shotgun safety card from Sydney International Shooting Centre (exhibit A9) was also relied on to indicate that the Applicant had attended the range on 1 May 2022.

28. The Applicant gave evidence at the hearing and was cross-examined by Mr O’Brien, the solicitor appearing for the Respondent.

29. Mr O’Brien required the Applicant’s father for cross-examination, but he was not present before the Tribunal on either of the hearing days. No evidence in relation to his non-attendance was provided.

Respondent’s evidence

30. The Respondent relied on the s 58 documents (exhibit R1), a statement of Detective Senior Constable Sean Conner dated 24 May 2023 (exhibit R2), a statement of Sergeant Alexandra Laird dated 21 June 2023 (exhibit R3) and a statement of Detective Senior Constable Jared Olaussen dated 16 June 2023 (exhibit R4). Each of the officers gave evidence remotely and was cross examined by Ms Ghabrial, the counsel for the Applicant.

Submissions

31. The Applicant relied on written submissions dated 15 May 2023 and the Respondent relied on written submissions dated 21 June 2023. Both parties made oral submissions at the hearing.

Role of the Tribunal

32. Section 75(1)(c) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent’s decision pursuant to s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 63 of the 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34].

33. In an application for review, the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

34. The Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The Respondent’s revocation power, and by derivation that of this Tribunal, is a discretionary one and accordingly, the objects and purposes of the Act are relevant.

Issues for determination

35. The Respondent submitted that the Tribunal should affirm the decision made at first instance, and again following internal review, to revoke the Applicant’s licence, because the Applicant is not a fit and proper person to hold a firearms licence, and because it is contrary to the public interest for the Applicant to hold a firearms licence. The Respondent relied on various grounds in support of this position, including the Applicant’s conduct as referred to in a number of reports from the database maintained by the NSW Police Force known as the Computerised Operation Policing System (COPS) and copies of these COPS reports were included in the documentary evidence relied upon by both parties.

36. The grounds relied upon by the Respondent also included the Applicant’s extensive adverse traffic history, which contained an infringement and suspension relating to driving with prescribed illicit drug present in his oral fluid. Also relied upon was the Applicant’s lack of credibility, the “sweeping denials” in his affidavit and his refuting of various factual matters contained in the COPS reports.

37. The Applicant did not accept this position and it was contended that the Tribunal would find that the correct and preferable decision is that the Decision be set aside and substituted with a decision to re-issue the Applicant with his licence. It was submitted, amongst other matters, that the Applicant had never contravened the firearms legislation in any way and that there was no reliable and admissible evidence that the Applicant has ever done anything to place the safety of the community in any actual danger in any way; particularly in respect of firearms.

Public Interest

38. I will firstly consider the Respondent’s contention that it is not in the public interest for the Applicant to continue to hold the licence.

39. The phrase “public interest” is not defined in the Act. In O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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.

40. The concept does include 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] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor(No 2) (1995) 131 ALR 657, 681, the High Court said:

The purpose of the reference 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 Commissioner’s consideration. The effect of the reference is to amplify the “scope and purpose” of the legislation.

41. The issue of public interest allows for matters going beyond the 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]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.

42. In a familiar passage, 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].

43. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. “The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests” at [8].

44. Other cases have pointed out that 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, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that, "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". 

Applicant’s traffic history

45. The Respondent relied on the Applicant’s criminal history and Traffic Record Report (part exhibit R1). Whilst the Traffic Record Report is dated 12 January 2023, there was no suggestion that any further offences had been committed by the Applicant in the intervening period leading up to the hearing and I accept this to be the case.

46. The Decision makes reference to the Applicant’s extensive adverse traffic history and the delegate stated as follows:

In my opinion, your inability to adhere to regulatory schemes aimed at ensuring public safety, and your continued lack of regard for the traffic laws and regulations, raises real and concerning issues with you being issued with a lethal weapon that is also governed by laws and regulations.

Disregard for any law brings to question your aptitude in making appropriate and sound decisions, habitually disregarding the law, calls to question your character. As such, I cannot without any confidence determine that you pose no risk to public interest should you be issued with a firearms licence.

47. The Applicant’s NSW Traffic Record Report indicates that the Applicant was issued with a Learner Licence (Class C) on 28 March 2011 and a P1 Provisional Licence (Class C) on 4 April 2012. Between 4 April 2012 and 20 April 2021, a period of some nine years, the Applicant’s Traffic Record Report includes 14 traffic offences, including one count of negligent driving and nine speeding offences, one of which was in a school zone.

48. Since being granted a NSW driver licence, the Applicant’s Traffic Record Report indicates that he has been issued with various demerit point warning letters and has had his driver licence suspended in 2013 and in 2014 as the result of demerit points. An entry of 8 January 2018 records the “withdrawal of NSW visiting driver privileges from 12- 02-2018 until 11-06-2018 inclusive, as a result of exceeding the demerit point limit.”

49. The Applicant’s Traffic Record Report indicates that the Applicant’s NSW driver licence was again suspended from 25 May 2021 to 24 August 2021 (inclusive) as the result of the offence of 27 January 2021 for “Drive vehicle with prescribed illicit drug present in oral fluid; blood or urine” (2021 offence).

50. In cross-examination, the Applicant agreed that the contents of his traffic history were correct. However, in his affidavit, he indicated that he did not admit to using cannabis in relation to the 2021 offence and that he had paid the infringement notice rather than going to court.

51. Further consideration is given below to a number of the matters contained in the Applicant’s traffic history.

2018 offence

52. As set out above, the Applicant’s Traffic Record Report contains a reference dated 8 January 2018 indicating the withdrawal of the Applicant’s NSW driver privileges from 12 February 2019 to 11 June 2018. An entry dated 9 May 2018, makes reference to an offence of “Unlicenced driver” committed on 7 April 2018 and dealt with at Bankstown Court by way of a fine of $500.

53. The Applicant’s criminal history contains only one matter. It refers to the Applicant being charged with an offence on 8 April 2018 of “Drive etc when visiting privileges withdrawn – first offence” and indicates that the matter was dealt with at the Bankstown Local Court on 9 May 2018, with the Applicant being fined the sum of $500.

54. The Court Attendance Notice (part exhibit R1) relating to this matter indicates that it was created by the apprehending officer on 8 April 2018, and refers to the Applicant as the “Defendant”. The offence details refer to an offence under s 53(1)(a) of the Road Transport Act 2013 (NSW) of “Drive etc when visiting privileges withdrawn -first offence” as follows:

Between 11.40 am and 11.55 am on 07/04/2018 at … did drive a motor vehicle on a road without the said [Applicant] either being licenced for that purpose or exempted by the regulations from being licensed for that purpose.

55. The Court Attendance Notice and the Facts Sheets (part exhibit R1) record the name of the Defendant/Offender as the Applicant and gives his address as a Queensland address. Both documents refer to a Queensland driver licence. The Queensland driver licence number recorded in these documents is different to the NSW driver licence number referred to in the Traffic Record Report.

56. I am satisfied on the documentary evidence before the Tribunal, that the entry for the offence of “Unlicenced driver” in the Applicant’s Traffic Record Report is the same offence as that recorded in the Applicant’s criminal history (2018 offence) and that it took place on 7 April 2018 with the Court Attendance Notice being issued by police on 8 April 2018.

57. The Facts Sheet indicates that the Applicant was stopped by police in a named street (the Street) in a named suburb within the Greater Sydney area (the Suburb) in NSW on 7 April 2018, whilst driving a vehicle with NSW registration plates. The police decided to stop the vehicle for the purpose of a random breath test, and it is recorded that the Applicant complied with that request.

58. The Facts Sheet indicates that police approached the Applicant and asked him to produce his driver licence and the Applicant produced a Queensland class C licence with his image depicted on it. Checks undertaken by police revealed that the Applicant’s driving privileges in NSW had been withdrawn from 12 February 2018 until 11 June 2018 due to the Applicant exceeding his demerit point limit. Police then returned to the Applicant and advised him of their finding, to which it is recorded that the Applicant “claimed he was unaware despite claiming to still live in Queensland.” The Facts Sheet records that the incident was captured on ICV, which I assume to be a reference to an in-car video used by police, and indicates that the ICV could be produced at court if necessary. No reference is made in the Facts Sheet or the Court Attendance Notice to the Applicant’s NSW driver licence.

59. In his affidavit, the Applicant refers to the 2018 offence and says that when the police pulled him over, he “honestly” thought his Queensland licence was valid and that he “had no idea” that his driving privileges had been withdrawn. The Applicant indicated that he cooperated with the police at all times and pleaded guilty to this charge because he did not want to go to the trouble of challenging the matter at a hearing.

Consideration of issues relating to 2018 offence

60. The Applicant was legally represented before the Tribunal and no challenge was made to his criminal history, the Court Attendance Notice or to the Facts Sheet contained in the s 58 documents. Having regard to the Applicant’s evidence as well as the charge number on the Court Attendance Notice also being referenced on the Facts Sheet and in the Applicant’s criminal history, I am satisfied that the Applicant appeared before the Bankstown Local Court on 9 May 2018 in relation to the matters set out in the Court Attendance Notice and Facts Sheet, and that after pleading guilty to the 2018 offence, he was convicted and fined $500.

61. On the basis of the Applicant’s evidence referred to above, I am satisfied that the Applicant held a Queensland driver licence at the time of the 2018 offence. In the proceedings before the Tribunal, the Applicant did not contest any of the matters referred to in the Facts Sheet and adduced no further evidence in relation to the matters contained in that document. Accordingly, in all of the circumstances I am satisfied of the matters set out in the Facts Sheet, including that the Applicant produced his Queensland driver licence, which included a Queensland address, to police. I am satisfied on the basis of the documentary material that this Queensland address appeared as the Applicant’s address on the Court Attendance Notice and the Facts Sheet. I am also satisfied that at the time of the 2018 offence, the Applicant claimed to police to “still live in Queensland”.

62. Other than the reference dated 8 January 2018 to the withdrawal of the Applicant’s NSW visiting driver privileges referred to above, there is no indication in the Traffic Record Report that the Applicant’s NSW driver licence was suspended between 12 February 2018 and 11 June 2018. It is evident from the Traffic Record Report that the 8 January 2018 notation pre-dates a further speeding offence recorded as being committed by the Applicant on 21 January 2018. No copy of the Applicant’s Queensland driver licence was in evidence before the Tribunal nor was any evidence adduced as to whether the Applicant has a traffic record in Queensland. There is no evidence as to why the Applicant produced the Queensland driver licence to police on that day and not his NSW driver licence.

63. On the evidence before me, I am not able to make a determination as to what demerit points are being referred to in the Facts Sheet which resulted in the Applicant exceeding his demerit point limit or which traffic offences they relate to. As a consequence, I am not able to make a finding as to why the Applicant’s NSW visiting driver privileges were withdrawn and whether this related to matters in NSW or elsewhere. As previously referred to, I am however satisfied that the Applicant committed the 2018 offence and was convicted and fined in relation to it.

2021 traffic offence

64. The Applicant’s Traffic Record Report also includes an offence that took place on 27 January 2021 of “Drive vehicle with prescribed illicit drug present in oral fluid, blood or urine” (2021 traffic offence). The Traffic Record Report indicates that the Applicant was fined $581 for the 2021 traffic offence and received a “Drug Related Suspension” of his NSW driver licence during the period from 25 May 2021 until 24 August 2021 (inclusive).

65. The Applicant relied on COPS Event Ref No: E 78708354 (2021 COPS Event) (part exhibit A6) relating to the 2021 traffic offence obtained from the Respondent following a GIPA access application. It was not in dispute that the Applicant was stopped by police for a random breath test in a location close to his residence which returned a negative result or that at the request of the police, the Applicant then self-administered a road-side drug test that returned a positive reading for cannabis. He was then placed under arrest for the purpose of a secondary oral fluid analysis and taken to a local police station.

66. The 2021 COPS Event records that the Applicant was cautioned and asked a number of questions about the positive sample. He is recorded to have stated, “About three or four weeks ago if not longer. It was at a mates birthday party.” The 2021 COPS Event records that an oral sample was then taken and tested by police on a “Drager” device which returned a negative result. As a result of the negative result, the Applicant was not issued a Prohibition notice. The remainder of the oral fluid sample was sent for further analysis and cannabis was later found to be present in the oral fluid. It is further recorded that as the Applicant was found not to have committed any drug or alcohol related serious traffic offences in the previous five years, he was deemed by police to be eligible to receive a traffic infringement for the offence and a traffic infringement was subsequently issued to him.

67. In his affidavit, the Applicant stated that he has never driven under the influence of any intoxicating substances; whether alcohol, illicit drugs or other substances. He stated that although he denied having ever used cannabis, he decided not to take the 2021 traffic offence to court because he did not want a criminal conviction and that he decided to pay the fine instead.

64. Later in his affidavit, the Applicant stated that he was asked by police at the time as to why his initial drug test might be positive and that he was “honest” and said that he was at a party about a month before where people had been smoking cannabis through a vaporiser. He stated that he had never told police that he had actually used cannabis himself and that he thought the “reading might have occurred as a result of being around other people who had been smoking it at that party.”

65. The Applicant stated that after being issued with the traffic infringement he paid it, because the police told him that it was just a fine. He said that he understood from them that this meant that paying the fine did not result in him having a criminal record. He then stated:

Although I had not used any cannabis, I did not see the point of taking the matter to Court, spending money on legal representatives, and risking being found guilty and having a criminal record for the offence. I did not want to take that risk. So I just paid the fine.

70. Counsel for the Applicant put a number of questions in cross examination to Sergeant Laird in relation to the COPS entry for the 2021 traffic offence.

Consideration

71. I accept from Sergeant Laird’s statement that she is currently in the role of Intelligence Supervisor, and it is evident from the 2021 COPS Event that she was not present at any time during the interactions with the Applicant on 27 January 2021 or involved in the follow up of the 2021 traffic offence. Accordingly, I find that that Sergeant Laird’s evidence relating to the 2021 traffic offence is of no assistance in my consideration of that matter.

72. There appeared to be a suggestion on behalf of the Applicant that potentially the road-side test conducted on 27 January 2021 was in fact negative and/or that the secondary oral fluid sample that later produced a positive result was contaminated. Whilst I accept that the 2021 COPS entry in part refers to a negative result for the road-side oral fluid test, it is clear from the narrative and the evidence of the Applicant himself, that the test was indeed positive, and that the Applicant was subsequently arrested and taken for further testing.

73. I am satisfied that a further oral sample was provided by the Applicant following the issue of a caution to him, and whilst the initial analysis on the Drager device returned a negative result, the subsequent external analysis of the sample returned a positive result for cannabis and the Applicant was issued with a traffic infringement which he paid.

74. Whilst the possibility of the sample being contaminated was raised, no evidence, including expert evidence, was adduced in support of such a contention. In the absence of such evidence, I am not satisfied that the test was contaminated. Accordingly, on the evidence before the Tribunal, I am satisfied that the secondary oral fluid sample taken from the Applicant following his caution by police, returned a positive result for cannabis following analysis of the sample.

75. In oral submissions, it was put by Ms Ghabrial that Mr O’Brien had never suggested to the Applicant in cross-examination that he used illicit substances, such as cannabis, and that Mr O’Brien had never challenged the Applicant’s account in relation to the road-side test. Mr O’Brien submitted that he did challenge the Applicant in cross-examination in relation to the contents of his statement; the payment of the fine; and the three month suspension; and that this was on the record. Whilst I have not had access to the sound recording of the proceedings, I accept from my notes of the cross-examination that questions were put by Mr O’Brien to the Applicant in relation to his affidavit, the payment of the fine and whether or not he knew that there would be a three month suspension in relation to the 2021 traffic offence.

76. Section 38 of the NCAT Act provides that 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. In the circumstances of this matter, I am satisfied that these rules have been complied with. I am satisfied that the Applicant was aware that the Respondent was seeking to rely on the 2021 traffic offence to establish that the Applicant had driven under the influence of cannabis and that the Applicant was given a reasonable opportunity to present his case in this regard and respond to the Respondent’s position.

77. Taking into account the 2021 COPS Event and the Applicant’s evidence, I am not satisfied that the Applicant ever admitted to police that he had used cannabis prior to being tested on 27 January 2021. It would appear from the words recorded in the 2021 COPS Event that the Applicant referred to “it” being at a birthday party, some three to four weeks earlier. In the absence of any evidence as to the exact question put to the Applicant by police to elicit this response, I accept the Applicant’s evidence that he was referring to being at a party where people had been using cannabis.

78. Given my finding that the drug tests conducted by the police in relation to the 2021 traffic offence returned positive results for cannabis, I am satisfied that the Applicant was driving a vehicle on that date with a prescribed illicit drug, namely cannabis, present in his oral fluid and that he committed the 2021 traffic offence.

79. It was submitted on behalf of the Applicant that it is the mere presence of the illicit drug in the oral fluid that establishes the 2021 traffic offence and I accept this to be the case. However, the Tribunal is able to take into account criminal conduct: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62]-[64], and that it is the conduct rather than the conviction that is of concern to the Tribunal: Esterman at [30].

80. The Applicant’s evidence was that he had not used any cannabis prior to the 2021 traffic offence and that he paid the traffic infringement because he was told it was just a fine. He said that he did not want to risk being found guilty by a court and having a criminal record for the offence, so he just paid the fine.

81. In circumstances where the Applicant had a prior traffic history, including a number of warning letters and suspensions, I am satisfied that he would have been aware that the 2021 traffic offence would be recorded on his Traffic Record Report. I also take into account the amount of the penalty for the offence, which was $581, which is not an insubstantial amount. Whilst I accept that at the time of paying the penalty, the Applicant may not have been aware that he would also be subject to a three month suspension, there is no evidence that he sought advice in relation to the offence, or took any steps to challenge it, even after he became aware of the three month suspension of his NSW driver licence.

82. In circumstances where the Applicant contended that he had not used cannabis himself, but instead had attended a party some time previously where others were smoking, it is not clear why he said that “I decided not to take the matter to Court because I did not want a criminal conviction” and that he did not want to take the “risk” of being found guilty and having a criminal record.

83. Having regard to these matters, and in the absence of any expert evidence before the Tribunal as to the likelihood of a positive result for cannabis being recorded in the Applicant’s oral fluid test one month after being around other people using cannabis, I am satisfied that the positive oral fluid samples establish that the Applicant had used cannabis at some time prior to the test being conducted on 27 January 2021. In the absence of positive evidence as to the amount of cannabis found in the Applicant’s oral fluid, or expert evidence as to the effect of such cannabis on his driving, I am not able to form a view as to the extent, if any, that his driving ability was impaired by the presence of cannabis in his oral fluid at the time of the commission of the 2021 traffic offence. I accept that the Applicant was not criminally charged in relation to this matter and received only a traffic infringement.

Consideration of Applicant’s traffic history

84. The Applicant did not give evidence about the matters in his Traffic Record Report other than in relation to the 2018 offence and the 2021 traffic offence referred to above. The Applicant provided no explanation for the various traffic matters and did not refer to any changes to his driving that he had implemented or the effect, if any, that the various fines, suspension or his appearance before the Bankstown Local Court had had on him. He expressed no remorse or contrition in relation to his traffic history.

85. The written submissions for the Applicant also refer to the Applicant, after being granted his licence in 2017, having “only” been issued with six traffic infringement notices; to not having been given any cautions; and to having been suspended on one occasion only, which suspension he completely complied with. Reliance was also placed on the Respondent’s decision to issue the Applicant with his licence on 9 September 2017, by which time the Applicant had already accrued a traffic record.

86. In Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [102], Senior Member Montgomery held that “the Applicant’s repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety”. I accept that an applicant’s disregard for the traffic laws and regulations may be relevant to the consideration of the holding of a firearms licence.

87. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Schahill said at [57] and [81]:

57.   The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt – the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public’s or his own safety.

…

81.   The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.

88. The Tribunal must consider all relevant matters and as the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25]-[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. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.

89. In the written submissions for the Applicant, reliance was placed on the failure of the Respondent to produce the Applicant’s traffic record or criminal record in response to the GIPA access application made on behalf of the Applicant. The review application before this Tribunal seeks review of the Decision made by a delegate of the Respondent to affirm the revocation of the Applicant’s licence under the Act. Given this, a decision made by the Respondent under different legislation, namely the GIPA Act, in relation to an access application does not assist me in my determination and I give no further weight to the GIPA decision. Similarly, this review application is clearly not a review of the Respondent’s initial decision to grant the Applicant his licence on 9 September 2017. I note that even if the Respondent’s initial decision to grant the licence was subject to review, there would have been no presumption that the decision made by the Respondent at that time was correct.

90. The Applicant accepted in cross-examination that his Traffic Record Report was accurate, and I have previously made findings that I am satisfied in relation to the traffic offences, including the 2018 offence referred to in the Applicant’s criminal history and the 2021 traffic offence. I accept that the Applicant’s Traffic Record Report and criminal history is accurate.

91. It is clear from the Applicant’s Traffic Record Report that prior to the issue of his licence on 9 September 2017, the Applicant had accrued eight traffic infringements, had had his licence suspended on two occasions and received four warning letters. In the period from the issue of his licence until 25 May 2021, a period of less than four years, the Applicant committed a further six offences, the first being a further speeding offence committed in the same month as his licence was granted. In my view, the reference to “only” six further offences after the granting of his licence, does not assist in establishing that the Applicant has demonstrated insight in relation to his traffic offending.

92. The offences committed after the issue of his licence, include the 2018 offence which was dealt with by way of court attendance notice before the Bankstown Local Court on 9 May 2018 and for which the Applicant was convicted and fined $500 as well as the 2021 traffic offence, which resulted in a three month “Drug Related Suspension” of his NSW driver licence from 25 May 2021 until 24 August 2021. Given my previous finding, I am satisfied that the Applicant also held a Queensland driver licence for a period in 2018 and I am satisfied that on 8 January 2018, the Applicant’s NSW visiting driver privileges were withdrawn from 12 February 2018 until 11 June 2018 due to “exceeding the demerit point limit”.

93. Given the findings that I have made, I am satisfied that the Applicant has committed fourteen traffic offences in the period between being issued with his provisional driver licence in NSW in April 2012, and his last offence on 27 January 2021. I am satisfied that six of the traffic offences were committed after his licence was issued and include the 2018 offence and three speeding offences. I am satisfied that the Applicant has been the subject of three suspensions of his driver licence, the most recent of which was in 2021 and was also subject to the withdrawal of his NSW visiting driver privileges in 2018.

94. In my view, it is clear that despite two previous suspensions of his NSW drivers licence in 2013 and 2014, multiple traffic infringements and numerous warning letters relating to demerit points, that the Applicant has gone on to commit six further offences since being issued with his licence in 2017, including three speeding fines. I am satisfied from the Applicant’s traffic history, including the 2018 offence, that the Applicant has shown an ongoing disregard of traffic laws and regulations and that his traffic history is significant.

95. Whilst I have had regard to the various character references and testimonials relied upon by the Applicant, none of them make any reference to the Applicant’s traffic history. In circumstances where it is not clear that these referees are aware of the Applicant’s traffic history, I give them no weight in my consideration of this issue.

96. I am not satisfied on the evidence before me, that the Applicant has demonstrated any remorse or contrition in relation to his traffic history or shown any apprehension or insight into the risk to public safety caused by his conduct, particularly from his nine speeding offences. I accept the submission on behalf of the Applicant that his last traffic offence was committed by the Applicant on 27 January 2021, when he was aged 25. I note however that this offence resulted in the Applicant being subject to a three month suspension of his NSW Driver licence from May to August 2021, and that this suspension expired just over two years prior to the hearing in this matter.

97. I accept the submissions made on behalf of the Applicant that the evidence before the Tribunal does not establish that the Applicant has breached the firearms legislation or any condition on his licence. I also have regard to the Applicant’s employment and that he was married and had turned 28 at the time of the hearing.

98. It was also submitted by Ms Ghabrial that when police could not access the Applicant’s firearm in the safe at the time they were attempting to seize it, they specifically stated in COPS Event Ref No: E 88042718 (2022 COPS Event) that they did not hold “any concerns about [the Applicant]’ accessing the safe” until such time as it could be opened by his father.

99. Whilst I accept that this comment is contained in the 2022 COPS Event, the previous sentence states that the Applicant “does not have any access to the firearms safe and the keys to the safe are kept with [his father]”. Given that the purpose of the police attending the property at that time was in relation to the revocation of the Applicant’s licence and the seizure of his firearm, I am satisfied that the police did hold concerns in relation to the Applicant at that time.

100. In reaching this finding, I have regard to the Notice of Revocation dated 2 May 2022 (part exhibit R1), in which it was states that the Firearms Registry was not satisfied that the Applicant had demonstrated that he could continue to be trusted to have unfettered access to firearms and to uphold the associated legislative obligations. In the circumstances, I accept that the reference in the 2022 COPS Event was limited to the police not having concerns about the Applicant’s ability to open the gun safe as his father held the only key.

101. It was also submitted on behalf of the Applicant that he had never been charged with a criminal offence and had never been arrested for any criminal offence. Having regard to the 2021 COPS Event contained in the Applicant’s documentary evidence (part exhibit A6), it is evident that the Applicant was arrested by police following the positive result from the road-side drug test and was conveyed by police to a local police station for the purpose of a secondary oral fluid test. The Applicant did not dispute that he was arrested in relation to this matter, and I accept that he was. I am satisfied however, that as set out in the 2021 COPS Event, that when the secondary oral fluid test later returned a positive result, it was dealt with as a traffic infringement, and that the Applicant was not charged.

89. It is also apparent from the entry in the Applicant’s criminal history, and my previous findings, that the Applicant appeared before the Bankstown Local Court as the result of the Court Attendance Notice issued by police for the 2018 offence and was convicted and fined in relation to that offence.

90. It was also submitted on the Applicant’s behalf that there is “no reliable and admissible evidence that the Applicant has ever done anything to place the safety of the community in any actual danger in any way; particularly in respect of firearms.” In light of the Applicant’s significant traffic history, I do not accept this submission. There can be no doubt that the traffic laws are aimed at ensuring public safety and that speeding, especially excessive speeding and speeding in a school zone, places the community in danger. In my view, the Applicant’s fourteen traffic offences, including negligent driving and nine speeding offences, one of which was in a school zone and two of which involved exceeding the speed limit by more than 20 kilometres per hour, placed the community, including children and himself, in actual danger.

91. In Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384, the applicant in that matter had a history of some 21 traffic related offences over a period of approximately 15 years. The Tribunal found that it was not in the public interest for that applicant to hold a firearms licence. In reaching that conclusion, the Tribunal found the applicant’s traffic history to be “significant” and commented at [81] that “more would be required than the mere passage of time to show that the Applicant has changed his ways and undergone reformation of character.” I agree with the reasoning of the Tribunal in that matter.

92. I am satisfied that the Applicant’s repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at public safety. In light of the Applicant’s significant traffic history, I am not able to be satisfied that there would be virtually no risk to the community if the Applicant is permitted to continue to possess or to use firearms at the current time. Accordingly, I am satisfied that it is not in the public interest for the licensee to continue to hold the licence. The situation may change given the passage of more time if the Applicant is able to demonstrate sustained compliance with his obligations.

Issues arising from the 2018 offence and 2018 incident

106. As previously noted, the Applicant referred in his affidavit to the 2018 offence and to his Queensland driver licence. The Court Attendance Notice and the Facts Sheet relating to the 2018 both included a Queensland address for the Applicant.

107. The Facts Sheet for the 2018 offence refer to the Applicant being stopped by police in a particular Street and Suburb in NSW. The Applicant’s application for his licence in July 2017 gives the same Street and Suburb as his address and it was that address from which his firearm was seized in 2022. In his affidavit, the Applicant gives his address as being in the same Street and the same Suburb and in his oral evidence before the Tribunal, the Applicant stated that he had lived in that Street and Suburb all of his life. He stated that following his marriage, he had recently moved into the house next door to his original residence. This is his grandmother’s house and due to health issues, she now resides in the Applicant’s original residence in the Street.

108. At no time did the Applicant make reference to having resided in Queensland or provide any reason as to why he held a Queensland driver licence.

109. In his affidavit, the Applicant also made reference to a separate incident that occurred on 3 April 2018, some four days before the 2018 offence. In his affidavit, the Applicant stated that he was in the Suburb on that occasion “because this is the area I live in”. He said that he and his friend were driving to TAFE from “the street on which I live, being [the Street].” The Applicant said in his affidavit that he was attending TAFE at that time.

110. Included in the s 58 documents is COPS Event Ref No: E 67178936 that relates to the incident on 3 April 2018 (April 2018 COPS Event) that is referred to by the Applicant in his affidavit. The April 2018 COPS Event includes reference to the Applicant’s account of being driven to TAFE on that occasion and also refers to him and the other person with him providing identification documents to police. The details recorded for the Applicant include a Queensland address and there is no reference to a NSW address. The address recorded for the Applicant in the April 2018 COPS Event is the same as the Applicant’s Queensland address referred to in relation to the 2018 offence.

111. A statement from Detective Senior Constable Olaussen was before the Tribunal (exhibit R4) in which he stated that he was the author of the April 2018 COPS Event. Detective Senior Constable appeared remotely at the hearing and was cross-examined by counsel for the Applicant in relation to the incident on 3 April 2018 and more specifically, the April 2018 COPS Event. Ms Ghabrial put to the officer that the Applicant lived in the Street. The officer responded that he could not remember but stated that the Applicant’s driver licence indicated that he lived in Queensland. It was then put to Detective Senior Constable Olaussen that the Applicant had indicated that he lived in the Street and the officer responded that he did not remember that.

Consideration

112. No challenge was made to the Applicant’s evidence that he lived in the Street and Suburb, either for his entire life, or on 3 April 2018 and 7 April 2018. Accordingly, I am satisfied having regard to this evidence and the supporting documentary evidence before the Tribunal, that the Applicant has resided in the Street and Suburb all of his life, including 3 April 2018 and 7 April 2018 and that the Street and Suburb are in NSW.

113. I have already found, that other than the evidence previously referred to, no further evidence was adduced by either party in relation to the Applicant holding a Queensland driver licence in 2018 which included a Queensland address. I have also found that the Applicant claimed to police on 7 April 2018, the day of the commission of the 2018 offence that he still lived in Queensland.

114. It is apparent however that my finding that the Applicant has resided in NSW all of his life, is not consistent with the Applicant being the holder of a Queensland driver licence and having a Queensland address. It is also inconsistent with the Applicant “claiming to still live in Queensland.” No further explanation was provided in relation to this inconsistency by the Applicant, either in his affidavit, or in his oral evidence before the Tribunal and no explanation was given as to why the Applicant provided his Queensland driver licence to police on 3 April 2018 and 7 April 2018.

115. Whilst the evidence might suggest that the Applicant possibly held a Queensland and NSW driver licence at the same time in 2018, there is insufficient evidence before the Tribunal to support such a finding and accordingly, I do not make such a finding. Whilst it is not clear how the Applicant came to hold a Queensland driver licence or to have a Queensland address, there is insufficient evidence before the Tribunal in relation to these issues and I make no adverse finding in relation to them.

116. I do however have regard to the Applicant’s claim in the Facts Sheet that he still lived in Queensland, which is contrary to my finding that he lived in NSW at that time. Similarly, I have regard to the Applicant’s provision of the Queensland driver licence and Queensland address to police as recorded in the April 2018 COPS Event, at a time when he was living in NSW.

Further issues

117. The Respondent relied on COPS Event Ref No: E 64169354 (2017 COPS Event) in relation to an incident on 10 April 2017 (2017 Incident). The 2017 COPS Event refers to police speaking to the Applicant and another occupant in the same vehicle, who had pulled over to the wrong side of the road, directly in front of another vehicle. The vehicle in which the Applicant was in, was observed by police to flash its lights at the other vehicle, which contained a third person.

118. The 2017 COPS Event refers to a conversation that police had with the Applicant and records the officer asking the Applicant whether he was meeting up with the other guy, and indicating the third person who was driving the other vehicle as the “other guy”. The Applicant is recorded to have said “No, we don’t know him.” The officer is recorded to have responded, “Mate we were the car behind you. You pulled over on the wrong side of the road and flashed him with your lights. Seems like you know him to me.” Police spoke to the third person and recorded his name in the 2017 COPS Event. The Applicant’s name and details were also recorded as was the name of the other occupant in the same vehicle.

119. In his affidavit, the Applicant referred to the 2017 Incident and the 2017 COPS Event and denied any wrongdoing. He stated that on that day, he was with a good friend from high school. The name of the high school friend given by the Applicant is the same as that referred to in the 2017 COPS Event for the other occupant of the vehicle that the Applicant was in. The Applicant then stated that the driver of the second car was his cousin and provided his name, which is the same name as that recorded in the 2017 COPS Event for the third person who was the driver of the second vehicle.

120. At no time did the Applicant dispute the recorded conversation in the 2017 COPS Event or adduce further evidence from his high school friend who was present at that time.

Consideration

121. I am satisfied that the driver of the second car in the 2017 incident was the Applicant’s cousin and in circumstances where there is no evidence to the contrary, that the Applicant knew his cousin as of 10 April 2017.

Applicant’s interactions with police in relation to the 2017 and 2018 incidents.

122. As previously referred to, it is an underlying principle of the Act that the possession and use of firearms is a privilege that is conditional on the overriding need to ensure public safety. In such circumstances, there is an expectation by the public that licence holders who have been provided with the privilege of a firearms licence will demonstrate candour and frankness in their dealings with the regulator, namely the NSW Police Force.

123. The Tribunal in DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 said at [57], that “[t]he level of co-operation and frankness demonstrated by a licensee in dealing with the regulator is indicative of the licensee’s character” and at [58], “[a] licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator”. 

124. I agree with these comments and find that the Applicant was not candid with police during the 2017 incident when he told the officer that he did not know the driver of the second car. No further evidence was given by the Applicant in relation to this incident and no explanation was provided for his lack of candour, particularly in circumstances where he denied any wrongdoing.

125. I am also satisfied that on 3 April 2018 and 7 April 2018, when the Applicant provided police with a Queensland driver licence with a Queensland address, at a time when he lived in the Street and Suburb in NSW and had done so all of his life, establishes that the Applicant was not candid with police on either of these occasions.

126. I accept that the Applicant was not a licence holder at the time of the 2017 incident, but he completed his licence qualifications course only a few months later, namely on 18 July 2017, and was issued with his licence on 9 September 2017. The Applicant continued to hold his licence until it was revoked in 2022.

127. I have found that the Applicant was not candid in his dealings with police. In relation to the 2017 incident, the 2018 incident or the 2018 offence. In circumstances where this lack of candour was not addressed or explained by the Applicant, it  suggests that there is cause to be concerned as to whether the Applicant is likely to demonstrate those characteristics in any future dealings with the regulator, namely the Respondent in these proceedings, if he was to continue to hold a licence.

128. This finding adds further weight to the finding that I have previously made in relation to the Applicant’s traffic history, and my conclusion that it would not be in the public interest for the Applicant to continue to hold a licence at this time. I note however, that even without these additional findings, I would have reached this conclusion based solely on the Applicant’s traffic history.

129. Whilst I have had regard to the Applicant’s evidence in relation to recreational shooting and his desire to hold a licence, I accept that the considerations of the Applicant’s private interest in having a licence is outweighed by the public interest.

Conclusion

130. Having regard to the findings above, the correct and preferable decision is for the Applicant’s licence to be revoked and accordingly, the Decision should be affirmed.

131. In light of this finding, it is not necessary for me to consider the further grounds relied upon by the Respondent or to determine wither the Applicant is a fit and proper person to hold a firearms licence.

Order

132. 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: 09 December 2024