Crimes (Criminal Organisations and Control) Act 2012
Firearms Act 1996
Firearms Regulation 2006.
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Crimes Act 1900Crimes (Criminal Organisations and Control) Act 2012
Firearms Act 1996Firearms Regulation 2006.
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11Azzopardi v Commissioner of Police, New South Wales Police Force [2013] NSWADT 205Clyne v Commissioner of Police, New South Wales Police Service [2004] NSWADT 53
Comalco Aluminium (Bell Bay) v O'Connor (1995) 131 ALR 657
Commissioner of Police, New South Wales Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Director-General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Director of Public Prosecutions v Smith (1991) 1 VR 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Hughes and Vale v New South Wales (No.2) (1995) 93 CLR 127
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354
Mielczarek v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2016] NSWCATAD 34
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Scriberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270, affd on point in issue [2017] NSWCA 71
Judgment (14 paragraphs)
[1]
confidential hearing held on 7 June 2017 pursuant to s 49(2) of the Act, (ii) confidential exhibits CR 4 and CR 5 with attachments, and (iii) paragraphs 40 to 47 and 99 to 102 of these reasons are not for publication or for release to the applicant.
[2]
reasons for decision
The applicant Mr Stephen Charles Adams on 24 November 2016 applied to this tribunal for review pursuant to s 75(1)(a) of the Firearms Act 1996 and s 55 of the Administrative Decisions Review Act 1997 (ADR Act) of the internal review decision made by the respondent Commissioner of Police on 26 October 2016 pursuant to s 11 of the Firearms Act and s 53 of the ADR Act to refuse to issue to the applicant a category AB licence for the purpose of recreational hunting.
The applicant and his wife live on a rural property 17 km from Grafton. The applicant had lodged an application for a category AB licence for the reason of recreational hunting on 6 May 2015. At that time he held an AB licence and had held such a licence for an almost continuous period of approximately 15 years under the present Firearms Act. Before then he had held a shooter licence from 1988 to 1991 and a one shooter licence from 1992 to 2000. In addition to the AB licence, the applicant had also held a category H licence from 15 July 2002 to 21 June 2006, when it was revoked under s 24(1A) of the Act on the ground that the applicant had not provided evidence of ongoing annual accreditation training.
The applicant's category AB licence was suspended on 22 June 2015 on the ground that it was not in the public interest that the applicant hold it, for the reason that at the time of the suspension he was, and still is, a life member of the Outcasts Motorcycle Group, owns a Harley-Davidson motorcycle, attends Outcasts memorial events in Sydney, most recently in May 2015, and retains his Outcasts colours. The application was refused on 21 April 2016, that decision being affirmed following an internal review on 26 October 2016.
The applicant is aged 56 years and has one dismissal under the then conditional discharge provision, s 556A of the Crimes Act 1900, for offensive language. In 1998 he was charged with threatening a witness and perverting the course of justice. Those proceedings were dismissed on 1 February 1999, the Director of Public Prosecutions having determined that no further proceedings would be taken in the matter and no evidence would be offered. Those charges arose out of a visit by the applicant to one Stephen ("The Indian") Walker, who was at that time on remand at Grafton Correctional Centre for the murder of Steve ("The Yank") Barker. The respondent alleges that in the course of that visit the applicant threatened Gayle Hockey that her children would be "fatherless" unless her de facto husband, Joe Cashman, changed the statement he had made to police. That was taken to be a reference to a statement relating to evidence against Stephen Walker, who was a member of the Outcasts. The Commissioner maintains that the applicant is a "patched member of the Outcasts OMCG [outlaw motorcycle gang], Grafton Chapter" and has been seen by police wearing full Outcasts colours on numerous occasions.
[3]
Applicable legislation
Among the objects of the Firearms Act is the provision that strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: s 3(2)(d). It is an offence under s 7A of the Act to possess or use a firearm unless the person is authorized to do so by a licence or permit. A category A or B licence authorizes the licensee to possess or use the firearm to which the licence applies, but only for the purposes established by the licensee as being the genuine reason for possessing or using it: s 8(1).
A licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of the firearm without danger to public safety or to the peace: s 11(3). Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that "(a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest". Further, under s 11(7), notwithstanding any other provision of s 11, the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.
The issue in this case is whether the applicant is a fit and proper person to hold a firearms licence and whether or not it is in the public interest to issue such a licence to him.
[4]
The evidence
The open hearing of this application was held at Coffs Harbour courthouse on 3 May 2017. On that occasion the respondent called no oral evidence but relied on documentary material, the s 58 documents (exhibit R1), some further documents (exhibit R2) and some Director of Public Prosecutions documents (exhibit R3).
At the hearing the applicant adopted his statement dated 7 February 2017 (part exhibit A1) in which he stated inter alia that he had held a firearms licence from 1988 when he was granted a pistol licence, which he used as a pistol club member and also in the course of casual employment as a licensed security guard. When the company employing him was sold, he ceased working in the industry and allowed his security licence to lapse. He continued his pistol club membership until 2010 when he voluntarily informed the Firearms Registry that he no longer required a category H licence. He had retained his category AB for the purposes of vermin control only, as he had never been interested in recreational hunting.
On 22 June 2015 police inspected his firearms storage and documentation, and although they appeared satisfied with the results, one of the officers said he was from [Operation] Raptor and was there to seize the applicant's firearms. He asked if the applicant was still a member of the Outcasts, to which Mr Adams replied that he was, but he was a retired life member and not active for health reasons. He sometimes attends memorial services for members, but it depends on his health at the time.
The internal review reasons stated that his only criminal conviction was the 1989 offensive language charge, but that charge was dismissed [under s 556A]. Nevertheless, the respondent continually fails to acknowledge that outcome. The 1998 matter was also dismissed when the DPP dropped the charges because of a lack of evidence. In that case none of the persons charged in connection with the episode was convicted, but again the police seemed not to accept the results of judicial decisions.
The fact that the Licensing Court had granted him and the Outcasts Motorcycle Club Inc. a temporary liquor licence for a fundraising event on behalf of the Children of Prisoners Support Group and the local bushfire brigade and SES group showed that he was a fit and proper person, as did his holding of a security licence and a pistol licence. He became a member of the Outcasts because of the amount of charity work they performed, and it turned out to be a good combination, as they went on to organize many fundraising events. The applicant said he is no longer an active member because he is a retired life member, which is a title given to a member who has contributed time and effort to the club for many years.
[5]
Respondent's confidential evidence
On the adjourned date of the hearing, 7 June 2017, the respondent tendered certain confidential evidence and made submissions in relation to it. Confidentiality orders were made in respect of the evidence, the hearing and the submissions.
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[6]
Applicant's submissions
The applicant said he had received his renewed licence in 2015, the day after the impounding of his firearms. He had held a licence for 33 years with no contraventions, except minor paperwork matters. He had no involvement with drugs or violence, and had no mental problems. He also holds a security licence and the respondent had viewed him as fit and proper for 15 years. The 22 June 2015 inspection had not been carried out honestly, but he had complied with the request nevertheless. Incorrect information had been given about the offensive language charge. The untested police statements and the transcript relate to a different matter. He is a person of high morals and responsibility and the references show that he is the same upstanding person today as his health allows. He has no criminal convictions.
The allegations against him had been made by an unreliable woman and were withdrawn. The trials of Stephen Walker had resulted in two juries being unable to agree, and as the prosecution had been discontinued by the DPP, no inferences from the evidence could be drawn.
As OMCGs have not been declared criminal organizations, he was not a member of a criminal organization. It was not illegal to be a club member. The Crime Commission report did not mention the Outcasts or himself. He led a stable life, operating a stable business and had two children who are working. He had lived 26 years in Grafton. He is fit and proper to hold a firearms licence, and the references he has tendered outweigh the unsubstantiated claims against him. He also has a genuine reason for firearms ownership.
[7]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, that 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.
The tribunal has jurisdiction to exercise any functions conferred or imposed on it by the Civil and Administrative Tribunal Act 2013 (No. 2) (s 29) and the Firearms Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). 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, 357.
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 firearms possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7).
The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).
[8]
Fit and proper person
The applicant's licence application was refused both on the ground that he was not a fit and proper person to hold it and that his doing so would be contrary to the public interest. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
[9]
Is the Outcasts MC Club Inc. an OMCG?
The first question, therefore, is whether the Outcasts Motorcycle Club Inc. is in fact an OMCG, as the applicant maintains that it is nothing more than a non-profit social organization with charitable objectives. OMCG is not a legal term and there is no legal definition of such an organization. An Australian Crime Commission briefing paper on the subject (part exhibit R2) states that OMCGs remain one of the most high-profile manifestations of organized crime. They "see themselves as the 'one percenters' who operate outside the law - as opposed to the 99 percent operating within its confines". There are thought to be over 40 OMCGs operating in Australia. They often have a written constitution and are divided into different regions, known as chapters, each one under a president who has absolute rule and oversees the principles of brotherhood, loyalty and an enforced code of silence. "OMCG chapters pose a serious risk to public safety because they are liable to react violently to attempts by rival OMCGs to poach members or encroach on their 'territory'".
The ACC notes that most OMCG chapters do not engage in organized crime as a collective unit. Rather, their threat arises from small numbers of members conspiring with other criminals for a common purpose. They play a prominent role in the domestic production of amphetamine-type drugs and are also involved in other illicit drug markets, vehicle rebirthing and firearms trafficking.
The internal review reasons point out that the Outcasts have been involved in serious violence, including a dispute among some of its own members that resulted in two members, including one of the applicant's close associates, being convicted of offences involving the discharge of firearms with intent to murder. The offenders, armed with pistols, had ambushed a former Outcasts president, Jonathon Koen, who was driving a truck on the Pacific Highway. After being shot once, Koen managed to break away, but one of the members remained clinging to the truck with one hand and holding his pistol in the other, shooting the victim a second time, whereupon his gun jammed and he was unable to fire again (part exhibit R1).
Another member, Steve "Indian" Walker was twice tried for the murder of another member, Steve "The Yank" Barker, but the juries were unable to agree and the prosecution was discontinued. According to a 2 February 1999 press report, the prosecutor explained at a costs hearing that the committal of Mr Adams had been discontinued in the interests of the trial of Walker. "The decision was made out of discretion not to put the witnesses through the ordeal of a trial of Mr Adams and then again in the trial of Walker…. I understand it is the intention to use the evidence from the brief of Mr Adams in the murder trial of Walker" (part exhibit A1).
[10]
Is the applicant still associated with an OMCG?
The next question is whether the applicant is still associated with the Outcasts. It is not disputed that his involvement with the group extends over some 20 years and he was made a life member after 15 years, but is now officially inactive and is not required to participate in club rides or other activities. He may, however, join in a ride, wearing colours, if he wishes, but he does not do so for health reasons and because of the 700 kilometre distance between his place of residence and the clubhouse. He does, however, attend memorial functions for "fallen" members when it is practicable.
The respondent submitted that the applicant had held the position of secretary (and held it at the time of the alleged perversion of the course of justice and witness intimidation incidents), but Mr Adams maintained that there was only one secretary, who lived in Sydney, and that the Northern Rivers group of only 4 or 5 members was not a chapter because of its small size, and therefore could not have a secretary. For two or three years he had, however, informally performed the functions of secretary for the small Grafton group, which involved sending the minutes of their meetings to Sydney. They would meet in the shed at his property at members would be wearing colours if they had ridden there. Some members of other groups might also attend. But he was never officially a secretary, although he was allowed to wear a secretary patch. He was adamant that the shed was not a clubhouse but was decorated with memorabilia showing his own brothers, who were motorcyclists but not OMCG members. There was also a wall plaque of the "N.U.T.T" club, but that had nothing to do with the Outcasts and related to his participation in the bushfire brigade.
The applicant admitted that Walker had left his motorcycle and colours at the shed after his wife had declared that his presence in the matrimonial home was no longer welcome. He omitted to mention that Walker had actually lived in a caravan on the property during that period, a fact that emerged from his wife's evidence. He also said he had a tattoo of a Harley-Davidson motor (not a motorcycle, although he did use that word at one point) on his shoulder with the date he had joined, but that there was no reference to the Outcasts on it. Mrs Adams, however, testified that the phrase "Outcasts 1996" appeared on the tattoo.
[11]
The incident at Grafton jail.
The respondent's other main concern was the applicant's 1998 charges of threatening a witness and perverting the course of justice, which were discontinued in 1999 for the reasons set out above. The circumstances of the charges were that the applicant was visiting Stephen Walker who was in custody at Grafton Correctional Centre on remand on a charge of murder. During that visit it was alleged that Mr Adams threatened Gayle Hockey that her children would be fatherless unless her de facto husband Joe Cashman changed the statement he had made to police in relation to Walker, who was a member of the Outcasts.
The applicant objected to the transcript evidence relied on by the respondent on the ground that it related to Walker's committal proceedings, not to any charge against the applicant himself. He submitted that no inference could be drawn against him on the basis of that evidence. As there is no issue of estoppel, however, the evidence, being relevant, is admissible.
The first witness was a prison officer, Robert White, who was on duty in the visitors' room at the relevant time. It was quite crowded, with 25 to 30 people, and children running around. He saw the applicant stand up from his seat and walk over to Gayle Hockey, who was visiting her son Bradley Hockey, who was remanded in custody at the jail at the time. Mr Adams stood very close to her and bent over, apparently whispering to her. Ms Hockey did not show any outward signs of concern or distress.
Bradley Hockey testified that he saw "Chook" (the applicant) stand up and walk towards his mother, pointing his finger at her. He said Mr Adams also appeared to be raising his voice at her, but the witness could not make out what he had said.
Gayle Hockey related how she was visiting her son and that the visitors' room was rather noisy. Walker came into the room and sat down, then nudged her and said "Tell your husband to change his statement", to which she replied "To what?", and he replied "Tell them - tell them he was on drugs".
At that point the applicant stood up and pointed his finger at her and said "Your old man's bullshit has gone too far this time, tell the c*** to change his statement or his kids are going to be fatherless". She viewed that as a direct threat, and was frightened and upset, but tried to conceal her feelings because her son was in the jail. Before leaving she said to the applicant "Don't do nothing to Bradley because he's got nothing to do with it". Ms Hockey was closely cross-examined by Walker's counsel but remained adamant that the events had transpired in the way she had described. The fact that the threat Ms Hockey alleges the applicant made closely followed a direction from Walker to have her husband change his statement also suggests the existence of a common purpose between Mr Adams and Walker.
[12]
The public interest
The alternative ground for refusing the applicant's license application was that it was not in the public interest for the applicant to hold it. The phrase "public interest" is not defined in the Firearms Act.
In O'Sullivan v Farrer (1989) 168 CLR 210, [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 v Toloeafoa [1999] NSWADTAP 9, [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.
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) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (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.
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, [33].
On the basis of the open evidence I have found that the Outcasts is an OMCG and have noted that the Legislature has shown that it regards the activities of OMCGs and their members as a risk to public safety. The tribunal recognized that legislative policy in Sciberras. The Outcasts club has been associated with serious criminal violence, including the shooting with intent to murder of a club past president by two current members, the murder of Barker and prior drug dealings with him. There is also the incident at Grafton jail that led to charges of threatening a witness and perverting the course of justice. Those prosecutions were discontinued for the reasons set out above and, but I have found on the preponderance of probabilities that the allegations were well founded and that the acts in question were done pursuant to a criminal conspiracy between Walker, an Outcasts member, and the applicant.
[13]
Orders
1. The decision under review is affirmed.
2. Pursuant to s 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013,
1. the recording and transcript of the confidential hearing held on 7 June 2017 pursuant to s 49(2) of the Act,
2. confidential exhibits CR 4 and CR 5 with attachments, and
3. paragraphs 40 to 47 and 99 to 102 of these reasons are not for publication or for release to the applicant.
[14]
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
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 June 2017
Parties
Applicant/Plaintiff:
Adams
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He had always been a community-minded person and had many newspaper clippings, certificates, references and letters of appreciation to show that his character was, and had always been, the same. The letter from his then solicitors Thompson Wheelahan and Hampshire (exhibit R1, tab 6(b)) makes all the points he has put forward. He was unable to continue with legal representation because of affordability problems, but the point was that he had not changed, or had to rectify, any of his statements. He had, however, had to arrange for the Firearms Registry Review Section to correct many points of misinformation about him.
The police freely use the term OMCG in relation to the Outcasts, but the Outcasts Motorcycle Club Inc. is a non-profit association and its members have never worn a "1%" patch, as the police had orally acknowledged. As far as he knows the Outcasts is not a declared criminal organization and he is certain that he has never been a controlled person. Consequently he could not understand why the term OMCG was at all necessary.
The applicant did not accept the "not in the public interest" reason offered by the respondent as he had always been, and still was, an active community-minded person who is held in some regard as a productive member of the public. He attached personal references from some upstanding business people who are pillars of the community.
In oral evidence at the hearing the applicant reiterated those points and stated that the 1989 offensive language charge, which was dismissed under s 556A, arose from an embarrassing incident at a time when there was an epidemic of a gastric sickness in the area. In cross-examination he said he had joined the Outcasts 21 years ago, but after a certain number of years a member can become inactive, which he chose to do because of health problems and the distance to the clubhouse in Sydney. Usually a member can become inactive after 15 or 20 years, and in his case it was 15 years. It is a choice a member can make and is not automatic. Life membership had been conferred on him at the Penrith clubhouse and he had held a celebration party at home for that occasion.
An active member can join rides and parties, but he himself was now retired and did not see anyone. He could choose to go on a ride, but if a member is active it is sometimes compulsory. For a retired member it is not required. On one occasion he had flown to Melbourne for a memorial event, but if he had been younger he could have ridden there. A tribute to "the fallen" was held at a cemetery, a minute's silence being observed.
There had been no particular criteria for his joining the Outcasts. He had been organizing a charity function at the time for the Children of Prisoners Support Group, when some Outcasts members had said he should not be doing all that work alone and had invited him to be a part of their group. He had known some of the Outcasts members from previously, and some had helped him with organizational functions for the charity. After some hesitation he conceded that the Outcasts have written rules. There is a "prospecting" period when the postulant is treated as a "prospect" for about six months. In his case the period was three months, because some of the members already knew him.
He was regarded as a secretary but as the Northern Rivers group was not an actual chapter, having too few members, it was an informal arrangement involving him taking minutes of meetings and sending them to Sydney. There was an official Sydney-based secretary. He had been contacted to take on the secretary role, which he held for two or three years, because there were so many inactive members in the area.
He had been aged 35 when he joined the Outcasts, but in the club he was regarded as "green" *and young and was on a learning curve. He already suffered from a memory problem then as a result of head injuries sustained in a car accident. He had asked his doctor not to mention his head injuries or short-term memory problems [see letter dated 22 March 2017 from Dr E van der Merwe, part exhibit A2]. He is, however, able to drive a car and ride a motorcycle. He now works as a tattooist, because he is not answerable to anyone and can do things in his own time. He is also able to work sitting down, which helps with his ulcerative colitis.
The club has one clubhouse, which is located in Sydney. Some parties and meetings of Northern Rivers members were held at individuals' houses. When it was his turn, he used the shed on his property. Only 4 or 5 people would be present. The shed was not a clubhouse, but a "man cave" that was decorated with pictures of his own brothers, all of whom were motorcycle enthusiasts. Part of it was also a workshop. He and his wife had lived there before their house had been built. Their children had used it because their two sons were members of a band. He acknowledged that there was a plaque on the wall referring to the "NUTT Club", an informal group that had been formed when he was a member of the Bush Fire Brigade and which were raising money for it. The name "NUTT" was based on a teasing observation by the sister-in-law of one of the members who had remarked that they were "not under the thumb" (of their wives) because of the parties they held after they had been fighting a fire.
The member meetings held in the shed were not official meetings. They would occasionally hold a barbecue at which some of the participants were members, and some came from other clubs, such as the God Squad and the Salvation Riders, an offshoot of the Salvation Army. He had retired from active membership soon after he became a life member in 2001, having joined in 1996, because he was 700 km from the clubhouse and wanted to slow down. The club understood his circumstances.
He was asked about the report of the execution of a search warrant at the applicant's premises stating that Steve "The Indian" Walker's Outcast colours had been found in the shed. Walker was accused of murder, and Gayle Hockey gave evidence in relation to the charge. The applicant said that Walker had asked if he could leave his motorcycle and colours at the applicant's property, as he was not riding and his wife had ejected him. Counsel then pointed out that the search warrant was executed on 20 February 1998, while the evidence was that the threat to Gayle Hockey at Grafton jail had taken place the following day, 21 February. The applicant replied that as Walker's motorcycle had been left in the shed, he had to leave his club colours there also, and it was the only place available to him that could be locked up. Walker was an Outcasts member, but the applicant was not close to him as he was a drunkard.
The Outcasts colours consisted of a back patch showing a skull with a cigarette and a top hat, with the words "Outcasts" and "Australia". Members were only allowed to wear them when on a motorcycle. If they retired, the club might permit them to keep them. Prospects were not permitted to wear colours. He was given a full set of colours when he received life membership. He also had a front patch showing his secretary status, but no "1%" patch. Joe Cashman had left a vest at the shed. He had not been a prospect for long. He subsequently stabbed a security guard and was arrested for it, but later released.
The applicant had visited Walker in jail a few times to make sure that his family were being taken care of, as he had children. Gayle Hockey had been present at one of those visits at Grafton jail and said that the police had told her that if her husband, Joe Cashman, changed his witness statement in the case alleging Walker's murder of Barker, so as to give a different time for Walker's departure from her place of residence, they would "lose the charges" and some charges against her sons would also be dropped. Gayle Hockey had said that she and Walker had been sitting back to back in the jail's visiting centre and he nudged her before making the threat. Mr Adams said the police had insinuated that she would lose her other children if she did not cooperate. She was also concerned because she was friends with Walker and did not know Cashman had made a statement.
As the visiting centre was a small room, they were seated close together at a table about 2 feet square, or Gayle could have been sitting at the next table. The applicant denied threatening Gayle or pointing his finger at her, saying that he also had not known that Cashman had made a statement to police. Gayle had said nothing to the nearby guard about any threat. He conceded that if he had made the threat, it would have been frightening, and later said that he did not "think" he had threatened her. In any case Gayle could not be threatened. That experience had been the most frightening time of his life, as he had not made the threat. He was unable to afford a lawyer and contemplated self-harm at that time, although he has never done so since.
The witness said that the search warrant police had shown him at his property authorized them to search for brown or grey clothes belonging to Walker, but they came out of the caravan on the property carrying two blue T-shirts with Outcasts writing on them. He had invited the police to look inside the shed. They only took the 30/30 and the empty cartridge cases that he had saved in order to have them reloaded. He agreed that the police had taken the Indian's colours, but he had asked them why they had taken blue T-shirts when the warrant was for brown or grey clothing.
He had been a responsible gun owner for the whole time. His guns had never left the property, except on the occasion when the police took them. He needs firearms because they suffer from a vermin problem on their property and his wife cannot take care of those things. She can deal with some vermin, but cannot put down a sick or injured animal if it has become friendly with her. From time to time they keep and fatten cattle for sale, but at present they have smaller animals such as chickens and peacocks. If those are attacked by a fox or a wild dog, they are usually already dead by the time he finds them and there is no need to put them down. His wife's guns were taken by the police by mistake and subsequently returned. They are now kept in a digital safe. Only she knows the code and he is unable to access them. His wife would not give them to him.
There were often two memorials a year, but he did not attend them all as he lived 700 km away. He was not active and had no say in the club, he was just retired. It was not a criminal organization. Asked why he had not dissociated himself from the Outcasts, and had said he would not do so, he replied that it is not a criminal organization, but simply a non-profit motorcycle association. The Commissioner's position did not make sense. He could have dissociated himself from it, but would not. If it were in fact an OMCG, he would consider his position and probably would not remain a member. But it was not a matter of being in it or out of it, because he is now retired. He just wants to be able to attend the two annual memorials. Asked about tattoos, he said he had one on his shoulder giving the date he joined, but nothing about the Outcasts.
In re-examination the witness said that they lived 17 km out of town and had gatherings at the shed, but it was not a clubhouse that looks like one. He did not understand the fuss. Clothing does not prove anything.
The applicant then called his wife, Mrs Susan Adams, who adopted her statement dated 7 February 2017 in which she said inter alia that she had known the applicant since 1986. They married in 1989 and moved to Grafton in 1991 after he had built their house, in order to raise their family in a country environment. They opened their business in 1996 and still operated it. The children are now adults who both work and have families of their own.
Most of the statement is concerned with the circuitous route Mrs Adams had to follow in order to retrieve her firearms which had been mistakenly impounded by the police. As they have now been returned, that part of her evidence has little bearing on the issues in the present case. She concludes, however, by saying that Mr Adams has always been a community-minded, helpful person with strong morals. Together they had raised two considerate, courteous, hard-working young gentlemen, as well as starting and successfully running their retail business, which was entering its 21st year. Those, she said, are the accomplishments of a stable, responsible, hard-working person, which is everything her husband Steve Adams is. Being a member of a motorcycle club or not, he had always remained the same good person she knows him to be.
In cross-examination at the hearing, Mrs Adams said she is now aged 54 and has been married to the applicant for 28 years, since 1989. They have two sons aged 27 and 28, who are not members of the Outcasts or of any OMCG. Her husband had joined the Outcasts in about 1997. He had not been a member at the time they were married. He had been doing charity work near Penrith, and some friends of his who were club members had assisted.
Mr Adams used to ride three or four times a year, but was not required to do so as far as she knew. At the time when they met, even before he had joined, he used to ride with friends every weekend. He had usually attended meetings once a month, sometimes staying the weekend for the purpose. He visited the clubhouse and took part in charity fundraisers and social events. His health now determines how often he rides. His ulcerative colitis was diagnosed about 9 years ago, but he suffered from it two or three years before that. He had received specialist treatment for it. He is no longer as active as he used to be. For a short time he was a secretary, possibly for a year. She thought he had been a prospect for between 12 and 18 months, but was not sure because at the time she had been very busy with the children.
He owns an Outcasts vest with the club colours, which are a back patch bearing a skull and a top hat. She had met other members, who wore colours if they came up for a birthday event. She had never seen a 1% patch on Outcasts colours and could not recall seeing a secretary patch. Her husband is a tattooist but has no Outcasts tattoos. He has one tattoo, showing a Harley-Davidson motorcycle and the words "Outcasts 96".
She had held a firearms licence for quite some time, possibly 17 years. They have to deal with rabbits, wild dogs and occasionally Steve has to put down livestock. She does not necessarily aim to shoot wild dogs or foxes, but the shot makes them take flight. Her guns are kept in a digital safe on the property. She had changed the code when she obtained a new rifle. The applicant had never asked for the code or for access to her firearms. The February 1998 search warrant had been in relation to Walker, who had been living in the caravan. The shed had never been a clubhouse. There was a NUTT sign in it, which stemmed from a joke by her sister-in-law.
The memorabilia in the shed were photographs of his brothers, who all ride. They are not Outcasts or OMCG members. The shed is not used for members but for such things as social barbecues. Her husband's friends would wear colours at those functions if they had ridden there. Both of her sons had been in a band from the age of 12 or 13. They had drum lessons in the shed, as well as guitar and keyboard lessons. There was a small raised platform in the shed for the drum kits.
In re-examination, Mrs Adams repeated that she had been the one who had changed the digital safe code. Her son Scott had also used the shed to practise his skills as a disc jockey. All the equipment is still there - lights, drum kits, and speakers that had been purchased for the drums and the DJ work. Now it is partly used for the storage of boxes that had been used in a recent move by one of her sons.
The tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply as lesser standard of proof than the criminal standard: Joseph, [60].
Putting aside for a moment the two matters considered in more detail below, the evidence provides little basis for finding that Mr Adams is not a fit and proper person for the purposes of firearms licensing. He has no criminal convictions of any kind. In 1989 a charge of using offensive language against him was dismissed under the then s 556A conditional discharge provisions of the Crimes Act 1900. In his oral evidence he explained that although he did use bad language on the occasion in question, the incident stemmed from an unfortunate and embarrassing situation that arose through no fault of his own.
He has a 33-year firearms licensing history that is unblemished apart from some minor record-keeping matters. For 15 of those years the Commissioner has adjudged him to be a fit and proper person to possess firearms. He has passed all safe storage inspections.
He does not drink, smoke or use non-prescribed drugs. His personal background is a stable one. He has lived for 26 years in the Grafton area, during which time he and his wife have operated local businesses, Mrs Adams having a lingerie store and the applicant conducting a tattoo parlour in the premises next door. They live on an 86 hectare property at Ramornie, some 17 km outside Grafton, which they use for livestock raising, sometimes cattle, but at the moment mainly smaller animals such as poultry and peacocks.
Their family life is a stable one and they have three adult children, including two married sons in their 20s who are working and have families of their own. Both sons are keen motorcyclists but not members of any OMCG. The applicant has a long record of active community service commencing before he became an Outcasts member. That is apparent inter alia from several of the 18 character references he tendered, which include supportive letters from senior personnel of State Emergency Services and the Bushfire Brigade. The respondent pointed out that those references were written in 1998 and argued that they could be given no weight. Nevertheless I think they say something about the applicant's community standing at that time. A few of them indicate awareness of the criminal charges he was facing at that time. There are also a number of 2017 references, which do not mention the current application but some of which do inferentially acknowledge the respondent's reservations about the applicant's OMCG connections.
The applicant also points out that in 1997 he was considered a suitable person to be issued with a temporary liquor licence (part exhibit A1).
On that basis the applicant might well qualify as fit and proper for the purposes of the Act, except for the two matters emphasized by the respondent: his long-standing and continuing association with the Outcasts and his 1998 charges of perverting the course of justice and threatening a witness. Although in the intervening years the Commissioner has accepted that Mr Adams is fit and proper to hold a firearms licence, it has been held that an application for reauthorization must be considered anew and that it is both possible and proper for a different view to be reached under the same legislation: Clyne v Commissioner of Police, New South Wales Police Service [2004] NSWADT 52, [30].
The respondent is concerned that the applicant is a long-standing member of the Outcasts OMCG and that he is still closely associated with it, including taking part in memorial services and memorial rides, and is loyal to it and its members. He held a senior position in the organization and hosted informal meetings in a fitted-out shed on his property that gave the appearance of being a clubhouse. The Court of Appeal has acknowledged that it is commonly recognized that OMCGs are involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270, [101]; affd. [2017] NSWCA 71.
The enactment of the Crimes (Criminal Organisations Control) Act 2012, which can limit the activities of certain OMCGs for specific periods, indicates that the Legislature regards the activities of OMCGs and their members as a risk to public safety: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206, [80]. Where there is evidence demonstrating that an applicant is a member of the OMCG whose members are known to have engaged in criminal activity but the applicant refuses to dissociate himself or herself from it, it is appropriate to refuse the applicant a firearms licence: id., [95]; see also Mielczarek v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2016] NSWCATAD 34.
Walker had been doing "club business" with the deceased before Barker was murdered with a bullet in the back of the head. The business in question related to a transaction involving cannabis (exhibit R3, pp 16, 21; DPP v Walker, Transcript 9 October 1998 (TS) p 100, per Magistrate Linden), although the applicant denied that either the transaction or the murder had anything to do with the club. He also pointed out that Outcasts members do not wear a "1%" patch.
This tribunal's predecessor, the Administrative Decisions Tribunal, held, however, that given "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": Tolley v Commissioner of Police, New South Wales Police [2006] NSWADT 149, [31]. By the same token, the conduct of individual members cannot be differentiated from the activities of the group itself.
The evidence showing the Outcasts' hierarchical regional structure, written constitution and rigid rules, patches, tattoos, involvement in drug dealing and proclivity for extreme violence shows in my view that the Outcasts are an OMCG, and I so find.
He states that as an inactive member he no longer has any say in the club and simply wishes to retain his life membership in order to attend the two yearly memorial functions, when practicable. The other members, he said, "understand [his] circumstances". He agreed that he had refused to dissociate himself from the Outcasts, but said that it did not make sense for him to do so because it had not been declared a criminal organization. When asked whether he would break his links with it if it were an OMCG, he said he would consider his position and probably would not remain a member. But he said it makes no difference whether he is in or out now, because he is retired.
The applicant's continuing status as a life member, his retention of a full set of Outcasts colours, his attendance at Outcasts functions, specifically the memorial services, at which he would presumably wear colours, his acknowledgement that the other members understand his circumstances and his ambiguous response to questions about his failure to dissociate himself from the group all indicate a continuing relationship with an OMCG, and I so find. Even though he himself has a good firearms record, such an association creates a firearms risk: Azzopardi at [50].
In the statement that she adopted in her evidence, Ms Hockey said that "As a result of this I am terrified for my life and that of my family. I know that they are capable of killing anyone if they want to because of their connections with the Outcasts Bike Club. Joe [Cashman, her de facto] was a prospect at one time and we both know how serious these people are. I took the comments at the prison to mean that if we assist the police in any way we will be killed".
In his statement dated 7 February 2017 (part exhibit A1), which he adopted in his evidence at the hearing, the applicant made no reference at all to the incident at Grafton jail. It was not until he was being cross-examined that he gave as his version of events an account of how Gayle had told him the police had said that if she changed her statement in relation to the time Walker had left her house they would "lose the charges" against Joe Cashman and also against her son Bradley. The police had also insinuated that Gayle would lose her other children if she did not comply. Gayle was concerned because she and Joe had been friends with Walker. The applicant denied that he had pointed his finger at Gayle or threatened her, adding that he was not close to Walker because Walker was a drunkard.
The police fact sheet relating to Mr Adams's charges states that after Gayle Hockey left the Correctional Centre, she went straight home and told her husband of the threat. "Cashman and Hockey were so concerned about these threats that they have relocated their family" (exhibit R3, p 16). That proposition found support at the hearing when the applicant said he was unable to apply for a summons to give evidence directed to Gayle Hockey because he did not know where she was.
Gayle Hockey's evidence about the threat was unshaken in cross-examination. In material respects it was corroborated by the evidence of the prison officer Robert White and by Bradley Hockey. It is further corroborated by the fact that Mr Cashman and Ms Hockey have moved their family away from the area and their whereabouts are not known. In the circumstances the applicant's allegation that Gayle and Joe Cashman were in effect being blackmailed by the police to induce Mr Cashman to alter his statement bears the hallmarks of a recent invention. I find that the factual basis for the charges of perverting the course of justice and threatening a witness has been proved on the preponderance of probabilities. I also find specifically that the applicant made the threat pursuant to a common purpose with Walker, a fellow Outcasts member, to have Cashman alter his evidence with the aim of defeating the prosecution of Walker for murder.
It could have been argued, assuming the threat to have been made as alleged by the respondent, that it was made nearly 20 years ago, the applicant had not come under adverse notice since and there was no evidence of any continuing contact between the applicant and Walker or criminal elements. The applicant did not make any such submission, however, but simply denied the allegations and advanced a version of the events that I have found to be untrue. As a result his assertions lack the level of veracity necessary to permit the fair and efficient operation of the firearms legislation where he is concerned. That adds weight to the proposition that he is not a fit and proper person to hold a firearms licence.
I have already found that the Outcasts are an OMCG and that the applicant has a continuing association with that group. Although there is no evidence that the applicant has personally engaged in any drug dealing, firearms trafficking, violence or similar criminal activities, he could, as the respondent contends, come under pressure to make guns or ammunition available to members of the Outcasts if he continues to associate with them. On the basis of all the evidence, I find that the applicant is not a fit and proper person to be licensed to possess or use firearms.
In my view witness intimidation and perverting the course of justice, especially in serious criminal cases, is one of the graver offences known to our law, though it is not always recognized as such. In a case under the Tattoo Act Parlours Act 2013 involving the question of public interest, I said that -
One should not underestimate the likely moral effect of seeing three vicious criminals, recognized or identified in the act by credible observers, escape all retribution for their misdeeds by threatening witnesses and perpetrating what appears to have been a major perversion of the course of justice. In the mind of an impressionable and traumatized young man, a display of impunity on that scale could well prompt or aggravate an attitude of angry disregard for the law and contempt for the criminal justice system (O'Neall v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017 NSWCATAD 84, [114] - [115].
A belief that OMCGs or other groups of wrongdoers (in O'Neall no OMCG was involved) can engage in murder or mayhem at will and escape retribution by intimidating witnesses and perverting the course of justice can spread rapidly in society and deter victims or others from giving evidence. In the present case that belief appears to have led Mr Cashman and Ms Hockey to move away from the area and keep their whereabouts secret out of fear for their lives. Once such an attitude spreads, it becomes difficult for the law to protect the citizen against general lawlessness and violence. If generally unpunished, such conduct can lead to private, violent self-help (Walker, The Rule of Law: Foundation of Constitutional Democracy (Melb. UP 1988) 24, 193). "Rule of law must mean freedom from private lawlessness and anarchy before it can mean anything at all" (id. 193, quoting Prof. P.G Kauper).
On the basis of the open evidence I have found that the applicant retains an association with the Outcasts and even now equivocates about whether he would remain a member if he were to accept that it is in fact an OMCG. He admits that he has made no effort to dissociate himself from the Outcasts. The tribunal in Azzopardi has recognized that OMCG membership in itself entails a firearms risk. Further, confidence in the firearms licensing system could suffer if its elaborate requirements failed to prevent the licensing of a person known to be associated with an organization having a propensity for violence and other criminal conduct.
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On the basis of all the evidence I find that the applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The decision under review must therefore be affirmed.