Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General Transport New South Wales v AIC (GD) NSWADT [2011] NSWADT AP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Hook v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 250Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Jameson v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 25Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
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
Judgment (14 paragraphs)
[1]
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.
[2]
REASONS FOR DECISION
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.
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".
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.
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.
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.
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.
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.
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.
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.
[3]
Applicable legislation
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.
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.
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.
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.
[4]
Respondent's evidence
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.
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.
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.
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.
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.
[5]
Applicant's evidence
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.
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.
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.
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.
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.
[6]
Applicant's submissions
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.
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.
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.
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.
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.
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.
[7]
Approach
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.
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.
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.
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.
[8]
Fit and proper person
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.
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.
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.
[9]
The public interest
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).
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.
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.
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].
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]).
[10]
Criminal intelligence - s 11(5A)
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.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[11]
Conclusions
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.
[12]
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.
[13]
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.
[14]
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
S/C Blue had previously emailed a copy of the public health orders to all venues in her district. The next time she visited the Clarendon, the machines had been spaced to comply with the regulations.
In a closed session held pursuant to s 49 of the CAT Act the witness gave confidential evidence, adopting her confidential statement dated 11 February 2021 (confidential exhibit CR3).
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
In cross-examination, the applicant said that one of the penalty notices arose because there had been a power blackout on the premises at the time, so people were exiting. He had now replaced all the circuit breakers. He did have a COVID marshal at the time, but his arm and could not be seen because of the power blackout. When the lights went out, people had stood up and were walking around, holding drinks in their hands. He admitted that the question of spacing inside had been raised with him before, but said it was hard to know how many people would arrive, as they often came quickly in groups.
The question of numbers had been raised with him before, but what was he to do? The street outside was a public space and it was difficult to manage the crowds because he could not admit them all. He had placed barriers at the front, but needed more, but could not block a public street. Other businesses were open and added to the crowds. He had asked the police for advice to help him manage the lines.
He did not recall attempting to contact the person who had damaged the poker machine. Reminded that the police report said there had been several calls to that individual, the applicant said that the victim might have contacted him first, or the police might have called him first.
The witness said he was not a motorcycle club member and had no contact with motorcycle clubs unless members came to the venue. There is a Christian motorcycle club whose members attend regularly. He used his helicopter for leisure and private use only, as he has no commercial license. He has owned trucking businesses, motels and a teeth whitening company but has never been in the business of selling motor vehicles. His trucking businesses have included LA Heavy Haulage and West City Haulage, which he is trying to sell. Asked about a truck washing company called Moits, he said his company did some jobs for them.
He had been approached by the Environmental Protection Authority about some illegal dumping, but he showed them documentation that proved that he was not at fault and they took no further action. He had not refused to move the poker machines when police approached him about spacing, but had said he would contact the suppliers. Within two days he had spaced the machines correctly. Although he owns the two venues, they are run by the licensees, who engage the managers. Some issues are raised with him, but he then raises them with the licensees.
He rejected any suggestion that he was ever a drug dealer. He had never used drugs and had never been involved in supplying or transporting them. His trucks had not been used for that purpose. Asked about drug-taking on the premises, he said he never takes drugs, but cannot control what others do. They do search people for drugs on entry and monitor the washrooms. If he found out that drugs were being taken on the premises, and it does happen, he would eject the persons concerned and make a record in the incident register.
He had owned the Clarendon for three years and the Fitzroy since November 2020. The licensees had incurred several fines. He owns the venues, but the licensees run them. If issues are brought to his attention, he raises them with the licensee.
After the blackout at the Fitzroy, he had called an electrician, who found that the circuit breakers were faulty. Accordingly they were replaced a week or so later, and he had been invoiced for $7000. At the time of the incident there had been tables and chairs around the hall and people had stood up when the lights went off. The following week he had opened two more bars and put in more tills.
Asked about the altercation on 11 September 2014 (event E 56100758, exhibit R1, pp 34 - 35), he said he had been involved in building a dam wall and tried to leave the site with his truck still loaded, but it became stuck. He therefore tipped half of the load out to lighten is, but the others there threw a large stone that struck him in the face. He left the truck there to seek hospital treatment and returned later to collect his truck. There was no altercation on that occasion. When it was pointed out to him that the report stated he had returned with "2 carloads of Pacific Islanders", he replied, somewhat implausibly, that he could not remember how many people he had returned with, but had simply been dropped off and drove off.
The applicant tendered a psychologist's report dated 18 March 2021 by Mr Michael Kruger-Davis (part exhibit A1), which concluded that the applicant is genuinely remorseful for his actions because he now understands the consequences his past actions are having on the choices he wants to make now. He believes he is not the same person he was in 2006 or 2008. He has matured, turned his life around, abandoned associations with the "wrong crowd" and is in a stable relationship, raising a child, and successfully runs three businesses. The report is further discussed later in these reasons.
The applicant also tendered character references, one from Mr Robert Childs, director and owner of The Big Adventure Company, dated 18 March 2021, one from Mr Philip Bishop, general manager of IN2 Staffing Solutions, dated 17 March 2020 and a third from Mrs Zoe Ainscough, dated 19 March 2021. These references also are further considered below.
In Hook, the applicant had a substantial criminal record, but had displayed remorse, and the decision against him had been set aside. Jameson did not have that history, but had committed a serious firearms offence. But he was able to show the steps he had taken to prevent repetition.
In this case the applicant had integrated himself into the community and supported local charities. His helicopter flights undertaken during the floods were similar to the steps taken in Jameson. The public would have no concerns if he were to be granted an AB firearms licence.
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].
In the context of firearms licensing, the tribunal is required to form a positive state of satisfaction that an 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": Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63, [45].
The first fact adverse to the applicant's position is of course his conviction in 2010 of the offence committed in 2008 of "Take/ detain person in company with intent to obtain an advantage" or, in colloquial terms, kidnapping. The facts of that case are outlined at the beginning of these reasons and there is no need to repeat them or to point out that it is a serious offence.
A more recent event is the incident at the Clarendon where he sought to obtain from a patron money by way of compensation for damage to a poker machine in circumstances where it was unclear whether the patron was responsible for the damage alleged (event E 69480471, 22 September 2018, exhibit R1, pp 40 - 41). The applicant was criticized for his self-help approach to compensation, wishing to avoid the person's being charged with an offence, although he did eventually report the matter to the police. He claimed to have CCTV footage showing the person as the perpetrator, although that was never established. He was not charged with any offence.
Further, his licensed premises have been the subject of a number of police inspections, particularly in relation to compliance with the COVID-19 restrictions, including, on 20 March 2020, declining to turn off every second poker machine as recommended by police for social distancing purposes, crowding at the front and in the beer garden of the Fitzroy and only belatedly attending to those problems, and possibly operating the dance floor at the Fitzroy in contravention of the public health order. Although the applicant is not the licensee of either the Fitzroy or the Clarendon, he is the owner and is closely involved in the daily management of the venues and as such responsible for ensuring compliance with regulatory requirements.
As against that, the kidnapping offence occurred 13 years ago and Mr Ainscough has had no offences since then, including in relation to the episode over the damage to the poker machine. He has never had any firearms offences or come under adverse notice in relation to firearms. Most of the incidents related to the COVID-19 restrictions occurred at a time when the regulations were new and the applicant faced genuine problems in complying with them in relation to his two popular venues, on occasion seeking the advice of police to help him to do so.
He has become an active supporter of local charities and sporting clubs and during some serious floods used his own helicopter to fly in supplies of food and medicine to residents who had been cut off, and transporting animals out of the area, carrying out some 100 flights over a period of four days. He uses the hotels' courtesy bus to assist with the activities of local charities.
The psychologist's report of Mr Michael Kruger-Davis concluded that it is very unlikely that the applicant will reoffend. He has shown that in the past 13 years he has been able to stay on the right side of the law. The respondent submitted that the report merited very little weight because no issue about the applicant's mental health had been raised. Nevertheless, it is a detailed evaluation which also explains the scientific basis for the well-known observation that male law-breaking falls off sharply after the age of 25. Mr Kruger-Davis has no doubt that the remorse for the offences he committed expressed by the applicant is genuine, as he now understands the consequences that his past actions have on the choices he wants to make now. He has matured, turned his life around, abandoned associations with the "wrong crowd" and is in a stable relationship, raising a child, and successfully runs three businesses.
A reference from Mr Robert Childs, director and owner of The Big Adventure Company, and the applicant's uncle, has known the applicant since birth, as he and his wife had helped to raise him, as his parents had split up when he was young. As a teenager he tended to follow other people's leads but has learned the hard way after he did a very stupid thing which in some ways changed him into the person he is now.
He is happily married now with one child and takes care of his disabled mother who lives with them. He is a very hard worker with no higher education and has built several thriving businesses, helping others to do the same. He is very proud of what he has achieved and proud to be part of the Hawkesbury region. Mr Childs has also been a licensed firearms owner for many years and feels that the applicant would be very responsible, given the chance to obtain a firearms licence.
Mr Philip Bishop of IN2 Staffing Solutions writes that he has known Luke Ainscough for over five years, during which time he has found him to be an honest and hard-working family man. He understands that Luke has had a troubled past, but that is now well and truly behind him and he has dedicated his life to building a reputable business through dedication and hard work.
Luke is a loving father who wants only the best for his family. Mr Bishop has been a director of the Kenthurst Rotary Club for many years and also holds a firearms licence. He has no problem in recommending the applicant to hold a firearms licence.
The third reference is from Mrs Zoe Ainscough who has been with the applicant for seven years after meeting him in 2014, and married to him for five of those years. She said that he was open with her about his criminal record and deeply regretted what had happened. During the years they had been together, they had tackled the hurdle of his criminal record with strength and courage, knowing that the actions that happened at that time do not reflect a man he is today.
He is a loving husband, a doting and happy father, a committed and giving son, a businessman who is solution-oriented for always doing the next right thing by his staff and by the community in which he runs his businesses. Mrs Ainscough understands that a wife writing about her husband could be seen in a certain way, but she maintains that when she is with Luke she only ever feels safe and has a sense of always being at home. He has a true essence of maturity that he carries with him in all the areas of his life.
Given all the evidence, the applicant appears to make a prima facie case for meeting the standard in s 11(3)(a). It is necessary, however, to consider the confidential evidence in this case, which is done below.
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, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
Further, the Court of Appeal in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1] observed that the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant.
The respondent contended that it would not be in the public interest for the applicant to hold a firearms licence for essentially the same reasons as those advanced in connexion with the question of fitness and propriety: the 2010 conviction, the dispute over damage to the poker machine and the inspections in relation to compliance with the COVID public health order. The respondent noted that the applicant has asserted that he is now a reformed person and sought to emphasize that he has not been charged and convicted of any criminal offence in recent years. The respondent did not consider, however, that the applicant's recent conduct in relation to his businesses would satisfy the tribunal that he is capable of strict compliance with the Act and regulations and that there is virtually no risk in his being issued with a firearms licence.
For the reasons given above in connexion with the fitness and propriety issue, on the basis of all the open evidence, the applicant appears to have made out a prima facie case for finding that it would not be contrary to the public interest for him to hold a firearms licence. It is necessary, however, now to consider the confidential evidence.