Ainscough v Commissioner of Police

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1; Ryan v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 23; Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; 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: Luke P Ainscough (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartmann Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2020/00358945 Publication restriction: See above.

REASONS FOR DECISION

1. The applicant Mr Luke Peter Ainscough applied to this tribunal on 18 December 2024 for review of a decision by the respondent Commissioner taken on 8 October 2020 to refuse his application for a category AB firearms licence.
2. The ground for refusal was that police records, specifically event E31787582 and charge number H34724758, showed that the applicant had been charged on 23 July 2008 with, and later convicted of, the offence of "Take/detain person in company with intent to obtain an advantage".
3. The police fact sheet for that offence relates that the applicant had known the alleged victim of that offence for five or six years and during that time they had been on friendly terms, but they had had a falling out. It was alleged that on 11 April 2008, the applicant and a confederate had entered into an arrangement that the applicant would assist the co-offender to assault and restrain the victim in order to induce him to repay an alleged debt. The applicant freely assisted the co-accused in subduing the victim on the ground, as he struggled and attempted to break free. After the victim was eventually restrained, the applicant obtained some cable ties with which he helped the co-accused to secure the hands and feet of the victim. He also obtained a cloth rag which he doused in a clear liquid and forced into the victim's mouth in order to muffle the victim's cries for help.
4. He then helped his co-accused to stand the victim up and carry him to the victim's car, where they attempted to force him into the luggage compartment, before making him sit in the front passenger seat. The co-accused then drove the car through the Hawkesbury area to Lithgow. During the trip the co-accused allegedly continued to threaten the victim with assault and further assaults directed towards his family, if the victim failed to repay the alleged debt of $3000.
5. After some time, the co-accused returned with the victim to the Kurrajong area where he released him and allowed him to drive from that area in his car. That was done only after the victim under duress agreed to pay the alleged debt of $3000 the following day. After arranging with his mother to obtain the money, the victim met with the co-accused near Windsor Downs, where the moneys were paid, the victim fearing further reprisals from both the applicant and the co-accused.
6. It was not alleged that the applicant was the principal offender in the matter, but that he did have knowledge of what was to occur and assisted his co-accused to commit the offence. The offence could not have been perpetrated by the co-accused without the applicant's assistance. The victim did not sustain any significant injuries as a result of the offence. On 8 February 2010 at Penrith District Court the applicant received a suspended sentence of 18 months' imprisonment.
7. The applicant is also the subject of a number of criminal intelligence reports which, in the respondent's submission, raise concerns regarding the applicant's conduct in recent years.
8. The applicant applied for an internal review of the decision to refuse him a licence on 23 October 2020, but the review was not finalized and the applicant was not notified of the outcome within 21 days (and there is no internal review decision before the tribunal). Accordingly, the internal review was taken to have been finalized on 13 November 2020 under s 59(3)(b) of the Administrative Decisions Review Act 1997 (ADR Act), and any application for review should have been lodged with the tribunal on or before 11 December 2020. The parties agreed, however, on an extension of time to lodge the application, and an extension was duly granted.
9. On 1 February 2021 the respondent applied for an order under s 59 of the ADR Act in relation to the filing of certain confidential material required by s 58 of that Act and certain other confidential material. On 3 March 2021, those orders were made: Ainscough v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 47.

Applicable legislation

1. Section 11 of the Firearms Act creates a number of general restrictions on the issue of firearms licences. Section 11(3)(a) provides 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.
2. Section 11(7) of the Act provides that, despite any other provision of s 11, the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.
3. Also relevant, as the respondent relies on it, is s 11(5A), which creates a mandatory disqualification from the issue of a licence: (5A) A licence must not be issued to a person 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.
4. The issues in this application are thus: 1. whether the tribunal 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, 2. whether the issue of a firearms licence to the applicant would be contrary to the public interest, or 3. whether, having regard to any criminal intelligence report or other criminal information held in relation to the applicant, the applicant is a risk to public safety and the issuing of the licence would be contrary to the public interest.

Respondent's evidence

1. For reasons of convenience the respondent's evidence was presented first. The respondent tendered the s 58 documents (exhibit R1) and some supplementary s 58 documents (exhibit R2) and then called as a witness Senior Constable Rochelle Blue, who works as a licensing officer in the Crime Prevention Unit based at Windsor, having performed the role of licensing officer for 12 years. The witness adopted her signed statement (exhibit R4) and also the reports extracted from the Computerised Operational Policing System (COPS) in exhibits R1 and R2.
2. The witness said there had been recent action taken against the applicant in relation to breaches of the COVID -19 health rules and liquor legislation, involving penalties of $5000 and $1100 respectively. In cross-examination she said that the breach of liquor legislation consisted of keeping a door closed when entertainment was being offered. The penalty notice was issued to the licensee, but the applicant was present as he performs a management role.
3. S/C Blue was asked about event E 354190394 (exhibit R2, p1), which related how on entering the Fitzroy Hotel on 15 February 2021, police were advised by staff that the disc jockey had just tripped a power switch leading to some of the lights with the result of some of the lights in the premises going out. That was rectified while police were present. Police were of the view that the lights were deliberately turned off in order to allow the venue to close down the dance floor, which was operating in contravention of the public health order.
4. The witness said police suspected that the dance floor was operating, as there were people standing there perspiring near the floor, as if they had been dancing, and the disc jockey was in the sound booth wearing his headphones. Running a dance floor was prohibited because of the COVID restrictions, though music was permissible. The police had not asked the management if there had been any electrical problems, and could not dispute that there might have been some.
5. The witness was then asked about event report E 144782202 (exhibit R1, p 49) which described how police attended the Clarendon Tavern on 20 March 2020 and spoke to the manager regarding the public health order and what the management was doing to keep the venue safe. "The manager refused to turn off every second gaming machine as recommended", the report stated. Mr Kable on behalf of the applicant suggested that the manager (the applicant) had said he would confer with the machine suppliers about compliance with the order, to which S/C Blue replied that it was more than that, he did not want to turn them off. It was then suggested that as the health regulations were new at that time, it might have been reasonable to seek detailed information from the suppliers. The witness stated that the applicant would have had an opportunity to do so, but he had refused to turn the machines off. He could have achieved the correct spacing by moving the machines around, as some other venues had done, but at that time he had not done so and was not complying with the order.

Applicant's evidence

1. In oral evidence the applicant referred to S/C Blue's mention of the fine imposed on the Fitzroy Hotel. That had arisen because there was a line of 300 or 400 people out the front of the premises who were not distancing. He had to limit the number of people entering, so people were crowding in line at the front. The line would have been 400 m long if they had been correctly spaced. He now has steel barriers to control the line and has also recruited more security guards.
2. The other fine imposed on the Fitzroy had arisen on a Friday or Saturday when he was there. The premises are a heritage building, so it is not possible to do much to them. He was only able to use one entry and as the door closer could not keep up, the bracket had come off the door, leaving the door ajar. Now he has fitted two closers but cannot change things because of the building's heritage status.
3. He owns two hotels, the other being the Clarendon Tavern, and the incident on 22 September 2018 described in exhibit R1, pp 14 - 41 arose because a Clarendon patron had who had lost money had damaged a machine. The 18 January 2020 incident (exhibit R1, pp 46 - 47) concerned patron who had become disorderly and had been asked to leave. A week later, he had driven past the premises and shot some objects at the building with a slingshot. The applicant had called the police, but they had not taken any further action. In that instance he had been the victim.
4. He admitted that he had been convicted of kidnapping, and said that he had been young and really stupid at the time, and regretted his actions all the time. He thought he had pleaded guilty to the charge, but was not sure. It had been a ridiculous action, but did not involve a drug debt or any falling out with respect to drugs, although the victim had supplied some drugs to the applicant's girlfriend.
5. He had now grown up and put a great deal back into the Hawkesbury community. During the floods, a number of people had been cut off and could not obtain food. He used his own helicopter to fly in food and medicines, and to airlift animals out. He made 100 flights over four days. The Today television show had promised him $5000 towards his expenses, but he had not received it yet. The undertaking had cost him $50,000. He sponsors local football teams and charity organizations, using his courtesy bus for the charities' activities.

Applicant's submissions

1. The applicant filed written submissions on 25 March 2021 which began by stating that this was a matter where the applicant had applied for a firearms licence, which was rejected because of his criminal history. Without going into all the law on the subject, the basis of the application was essentially that the applicant had moved on from his past, and has matured and reformed (rehabilitated in the true sense of the word), and is remorseful for his past and will not reoffend.
2. All the available case law analyses concepts such as fitness and propriety, public interest and objective seriousness, but ultimately comes down to the tribunal having confidence that the applicant is not likely, or highly unlikely, to reoffend and is likely to be a capable and responsible firearms holder.
3. Looking at cases such as Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25 and Hook v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 250, the tribunal has focused on the remorse that has been displayed, the steps taken to show the tribunal that remorse, and in the case of Hook, the lack of offending over a substantial period of time. This is a case that ticks all those boxes, and on that basis, should be decided in the applicant's favour.
4. In oral submissions at the hearing Mr Kable pointed out that the applicant is the owner, but not the licensee of the premises in question. There is thus another level of responsibility involved. The COVID rules had just been issued at the time of the contraventions, without official warning, so it was fair that the owner would want to make enquiries of the poker machine suppliers, as he did. The evidence showed that there are difficulties in running hotels in the COVID situation and indicated clearly the problems the applicant had in dealing with it. He had owned the Fitzroy for only three months at the time he had been faced with electrical problems and the need for repairs.
5. No charges had been laid against the applicant in relation to the damage to the poker machine, and most of the conversations had been between the victim and the licensee. The applicant had complained to the police and no offence against him had been identified.
6. He freely admitted the kidnapping charge and was remorseful about it. The psychologist's report notes that offending is not uncommon among males under the age of 25, but that the applicant's remorse was genuine and he had changed his lifestyle, becoming an important member of the community. He had no offences on his record since 2010 and the public had nothing to fear if he were to receive a firearms licence. He denied any connexion between the 2010 offence and drugs, and reports alleging any such connexion it had not been substantiated.

Approach

1. 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, 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.
2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of 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.
3. 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 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(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind.
4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

Fit and proper person

1. The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 11(3)(a) provides that a licence must not be issued unless the Commissioner (and by derivation the tribunal) is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace.
2. 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 their 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.
3. 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.

The public interest

1. The second ground on which the respondent argues for licence refusal is that it is not in the public interest for the applicant to hold a licence, within the meaning of s 11(7).
2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
4. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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 under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
5. 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 [7]).

Criminal intelligence - s 11(5A)

1. The confidential evidence contains a number of criminal information reports that were made subject to orders under s 59 of the ADR Act and s 64 of the CAT Act on 3 March 2021 and which, in the respondent's submission, make out a case for mandatory licence refusal on the basis of s 11(5A) of the Firearms Act.
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. [NOT FOR PUBLICATION]
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]

Conclusions

1. I therefore find that s 11(5A) applies so as to require mandatory licence refusal. That being so, as that entails a finding that the applicant presents a risk to public safety and the issuance of a licence to him would be contrary to the public interest, it must necessarily follow that the tribunal cannot find that he is a fit and proper person to possess firearms, within the meaning of s 11(3)(a). I therefore so find. A similar conclusion must follow in relation to s 11(7), and I therefore find that it would be contrary to the public interest for a licence to be issued to the applicant. The decision under review must be affirmed.

Orders 1. Decision under review affirmed. 2. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement. 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3 is prohibited. 4. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the applicant.

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

Registrar 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: 30 April 2021