Angwin v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-08-31

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to refuse the applicant's Category AB Firearms licence application on 29 September 2020 and the decision on Internal Review on 25 January 2022 to affirm that decision.
The refusal was on the basis that the Commissioner believed that the applicant was not a fit and proper person to hold a firearms licence. Those matters concerned a reference to numerous police attendances at the applicant's residence concerning domestic arrangements. There was also a reference to the applicant's involvement in matters relating to threats and intimidation of others and an incident of adverse behaviour towards police in respect of a driving matter.
For the reasons which follow, the Tribunal has determined upon review based on all of the evidence and material before it, that the correct and preferable decision it is to affirm the decision of the Commissioner.

Introduction

The applicant in these proceedings is Mr Josh Angwin (Mr Angwin). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner's delegate formed the view that Mr Angwin was not a fit and proper person to hold a firearms licence.
The Commissioner arrived at that decision based on the matters summarised above at [2]. Essentially the Commissioner formed the view that Mr Angwin had engaged in threatening and intimidatory behaviour in a domestic context as well as a large number of Police attendances in relation to domestic matters.

Background

On 16 May 2020 Mr Angwin applied for a Category AB firearms licence. On 29 September 2020 the Commissioner refused the application for the licence on the basis that Mr Angwin was not a fit and proper person to hold such a licence. The brief reasoning was as follows: Information maintained by the NSW Police Force show since 2003 Police have made twelve attendances in relation to your domestic arrangements, where you have been named as the person of interest, victim or witness. In light of this, I am not satisfied that you are a fit and proper person to be granted a firearms licence.
On 21 October 2020 Mr Angwin applied for an Internal Review of the decision to refuse his licence application. At that time his request was made through his Solicitors who provided written submissions dated 27 October 2022. The submissions referred to Mr Angwin's current family circumstances (father of young children) and current occupation (long haul truck driver). The submissions outlined that a request for further and better particulars of Police had not been responded to and references were made to the vague nature of the incidents relied upon in the refusal including their historical context. Further submissions were made about Mr Angwin's current partner's Family Court proceedings and that these do not directly involve him, and he is not subject to any orders or restrictions in respect of those proceedings.
A closing submission was that Mr Angwin had no criminal record concerning violence and that he had never been subject to an apprehended violence order (AVO).
The Internal Review decision reached the same conclusion as the initial decision but provided a statement of reasons which exposed the reasoning of the decision maker unlike the earlier decision. The decision set out all overt interactions between Mr Angwin and Police beginning in 2003 and concluding in January 2018. The nature of the interactions included:

Cautioned by Police concerning intimidating threats to others (03/2003)
Reports of harassing then girlfriends mother outside her home - 09/2003 and 01/2004. 06/2004 subject to two year AVO
Arrested for alleged threatening behaviour 04/2004
Friend assaulted by person in a dispute with applicant 07/2004
Family member called Police due to argument with applicant 03/2005
Stopped and Cautioned by Police over traffic matter 06/2005
Issued Infringement Notice for traffic matter (burnout) 06/2006
Convicted 'self-administer prohibited drug' 08/2006
Applicant's car searched by Police in 'known drug location' 03/2008
Convicted in Court traffic matter for driving at 150kmph 04/2008
2017-2019 Police received reports concerning domestic matters and custody issues re: partner and her child - applicant believes vexatious
Police received report applicant harassed ex-partner of his current partner whilst driving 01/2018. Applicant reported threat to Police at soccer match by partner's ex-partner's family later in 2018.

The decision maker accepted the submission of Mr Angwin concerning the recent matters related to the Family Court but 'placed weight on the incidents of aggressive conduct by you over a lengthy period of time where you were cautioned or spoken to by police for your intimidating threats, threatening behaviour and verbal harassment of others'.
The decision maker also states in their review reasons: 'You were also previously subject to a two year AVO in relation to harassment of a family member of a person with whom you were in an intimate relationship. Your adverse behaviour displayed towards police in relation to your dangerous driving is also of concern'. The delegate goes on to note that any available information must be taken at its highest value and that the incidents as recorded by police raise concerns about Mr Angwin having access to firearms.
The delegated decision maker on review concludes that granting a licence to Mr Angwin would not be in the public interest because his demonstrated behaviour establishes potential risk regarding his ability and intention to comply with the law. In determining that granting the licence would not be in the public interest the decision maker relied on s 11(7) of the Firearms Act.

Jurisdiction

The Notice of Refusal was issued under the provisions of the Firearms Act 1996 (the Firearms Act) on 29 September 2020, section 11 (3) (a). Relevantly the section provides: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1)…. (2)…. (2A) … (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. … (Emphasis added)
However, the Internal Reviewer relied on s 11 (7) of the Firearms Act which provides: (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns refusals to grant a licence application. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person…
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [17] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The decision under review

In the Internal Review the senior delegate made a number of findings of fact that are set out in summary form at [11] above.
As noted above the Internal Review was lodged on 21 October 2020 and completed over 15 months later on 25 January 2022.

Administrative Review by the Tribunal

Mr Angwin filed his application for Administrative review on 11 February 2022. The application was filed within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

On my assessment the issues are:

Whether the evidence establishes that Mr Angwin is a fit and proper person to hold a licence:
Is it in the public interest for Mr Angwin to hold a licence?

Applicant's written evidence

Exhibit 'A-2'. Statement of Josh Angwin dated 13 July 2022 and annexures 1 and 2.
Exhibit 'A-3' Statement of S Ruggeri dated 14 July 2022.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act.

Both parties provided written submissions and only Mr Angwin was required for cross examination at hearing.
The Commissioner relied on confidential evidence which had been effectively received by way of orders made after an interlocutory hearing on 16 May 2022 whereby the Commissioner sought to admit confidential evidence on a confidential basis relying on sections 49, and 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and s 59 of the ADR Act. Reasons for decision were published for that application on 20 May 2022 (see: Angwin v Commissioner of Police [2022] NSWCATAD 161)
The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. In this regard both parties made open submissions as to why the material should or should not be received in that manner. In these reasons for decision the Tribunal is required to have regard to the confidential evidence (as previously received) and when considering it, the Tribunal cannot disclose the details of that evidence when determining whether Mr Angwin is a fit and proper person to receive a licence and whether the granting of the licence would be in the public interest.
For those reasons a number of paragraphs that deal with the confidential evidence are marked '[Not for publication]'.

Mr Angwin's evidence at hearing and submissions

In evidence in chief Mr Angwin adopted his statement of 13 July 2022 (Exhibit 'A-2') as true and correct.
In cross examination Mr Angwin said that the application which gave rise to these proceedings was his first application for a firearms licence. He said that he was seeking the licence to shoot targets and was a member of the Sporting Shooters Association of Australia (the SSAA). Mr Angwin said that once he obtains his licence he would like to seek permission from landowners to go onto their properties and 'hunt for food'. He said that his genuine reason for obtaining a firearms licence was for target shooting and vermin control.
Mr Angwin was taken to a matter at [16] of his statement where he responds to the incidents identified by the Commissioner in the s 58 material. That matter involved a motor vehicle left at an isolated location. Mr Angwin said in his evidence that he did not try and steal the vehicle but that he was just trying to remove a part from it. He said that he used to ride motorbikes in the bush in that area near Yellow Rock Road. He was not sure if it was National Park or just bushland. In any event Police observed a VL Commodore Berlina and another Commodore which appeared to be in the process of being stripped of their parts. Mr Angwin said that a friend let him know the car was there and he owned one himself at that time (2006). He said that he had smoked half a joint. He said that the part was described as a rubber exhaust ring where the exhaust system hangs below the floor of the car at the back.
Mr Angwin was asked a number of questions about his behaviour at this time and references to admissions about smashing a window on the car and actually taking the tail shaft / drivetrain ( a more substantial part). He was also asked about his driving offences and requested to explain what he was thinking at the time of these matters. Mr Angwin said that he could not tell the Tribunal what he was thinking 15 years ago.
Mr Angwin was taken to the matters at pages 17 and 18 of the s 58 documents whereby a witness reported that he was doing 'burnouts' in his car. Mr Angwin recalled doing burnouts in his car at John Street Shellharbour however he does not believe that he would have performed a burnout for a full minute or more. It would have been only for a number of seconds. In addition, he did not believe that he would have done a 'donut' or 'circle work' whilst performing a burnout. However, Mr Angwin accepted the evidence that he had performed burnouts and that his car was confiscated as a result. Mr Angwin admitted in his evidence that at the time of this behaviour he was ignorant about the matter.
Mr Zoppo, who appeared for the Commissioner, questioned Mr Angwin about a number of his traffic matters over this period. Police records indicate that he was questioned about burnouts in an industrial estate in 2007, which was after his car had previously been confiscated for similar behaviour. The timeline being the 2006 burnouts referred to at [33] the car being confiscated and then again coming to Police attention in 2007 for similar 'burnout' behaviour.
When asked about the incident of driving at 150 KMPH in 2008 and an incident on the F6 where he was somewhat cavalier when he was questioned about his driving, Mr Angwin said that he 'was immature'.
Mr Angwin gave some evidence about his truck driving occupation and that he moves 10mm and 20mm gravel rock for a company called Hansens Cement. He said that in 2012 he was driving a concrete truck that was overloaded and 'went over'. He referred to one other 'adverse' driving incident where there was an accident where he was not at fault with a formwork truck overtaking him in 2020. He also said that he had a ticket for driving over the speed limit (but less than 10 kmph over) in 2021. He said he was breath tested and drug tested. Another overload incident was on Pennant Hills road where Mr Angwin said, 'the rear axle was over the sensor'. Mr Angwin said that he arranged for the Local Member to have the matter withdrawn because of his good driving record.
In respect of the Family Law matters Mr Angwin said that his partners ex took the daughter away to Sydney. Following that, allegations were made in 2020 when the Court proceedings ended. The ex-partner (Mr 'C') made various allegation about him. An incident occurred at the soccer grounds whereby Mr 'C's brother called Mr Angwin a paedophile. He said that the step daughter has been taken away twice.
Mr Angwin said that he was a different person than in his youth and that he was tested regularly with challenges on the roads driving trucks as well as submitting to regular urine tests. He had worked for Hansen's for six years.
In submissions at the end of his evidence Mr Angwin characterised how he dealt with Mr 'C' by saying: 'I would not let someone live in my house rent free so I would not let them live in my head rent free.' .
In his statement Mr Angwin covered his early offending including traffic matters and stated on a number of occasions that he had no independent recollection of the details other than remembering some of the points raised in the s 58 documents. The incident in the licenced premises in 2004 involving the mother of Mr Angwin's ex-partner was characterised as the opposite of what was recorded in the COPS event. Mr Angwin said that he was stopped from leaving by the family member and denied any reference to an Uncle being in a Motorcycle Club.
References were also made to the behaviour and level of intoxication of his father when Mr Angwin was spoken to as a result of Police being called to the home in 2006.
Mr Angwin's statement refers to recognising the need to 'grow up a little bit' following the 2008 incident where he was fined for driving at 150kmph but Police believed that he may have reached 200kmph during the incident. He said that he needed to 'change (his) behaviour and take my life more seriously.'
The Family Court matters were explained in the statement as retribution for losing custody of the daughter by Mr 'C' and that all Mr Angwin's Police reports since 2008 related to or arose from this matter.

Commissioner's evidence

The Commissioner relied upon the material outlined at [24] noting that some of their evidence was confidential evidence (which is dealt with below).

Commissioner's Submissions

The Commissioner made oral submissions and provided detailed written submissions. Most of the oral submissions concerned the confidential evidence.
In oral open submissions the Commissioner reminded the Tribunal that Mr Angwin was sentenced to a period of imprisonment for one of his offences (which was ultimately suspended). The driving 40 kmph (or more) over the speed limit on a wet road at night was characterised by the Commissioner's representative as reckless. In addition, as the licence applied for is only recreational rather than occupational then the Tribunal should be mindful of balancing the positive and negative public interest matters noting that the purpose for which the licence was sought was discretionary.
The often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 were all referred to in the Commissioner's submissions dated 4 August 2022 as to public interest.
The case of Director of Public Prosecutions v Smith [1991] 1 VR 63 was also referred to in the Commissioner's submissions where the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of a government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of it members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
That case (Smith) outlines similar views to those expressed in the line of cases above and in particular Comalco Aluminium where the Court observed that the interests of the whole community are matters for the Commissioner's consideration.
Reference was made to the case of Ward v Commissioner of Police NSW Police Service [2000] NSWADT 28: At [27] - [28] the Tribunal observed: 27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In reference to the case of Webb v New South Wales Police Service [2004] ADT 110 the Commissioner noted at [32] that: 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. 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. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has led to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
The Commissioner submitted that there was also a possibility of risk to the applicant himself as well as the public interest determination of the matter and whether it was in the public interest or not to issue the licence was protective not punitive.
It is now necessary to consider the confidential material tendered at the preliminary hearing on 16 May 2022

confidental paragraphs

[Not for Publication].
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Consideration

I note that in the initial decision rather than the internal review before the Tribunal, the notion of 'fit and proper' is referred to by the initial delegate. The lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various Administrative Decisions Tribunal (ADT) and Tribunal cases that have relied on Bond.
The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
On the notion of public interest, I note that such matters include public protection, public safety and public confidence in this instance extending to the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
When looking at the primary issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 observed at [28] when referring to Toleafoa: 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
The applicant has a history of offending as well as an extremely adverse traffic history in his first six or seven years of having a drivers licence. Whilst there is not any significant history of violence, the protective nature of the firearms legislative regime is focused on public safety with an emphasis on an licence holders propensity for obeying the law at all times. Aspects of Mr Angwin's conduct is not conduct which promotes public safety. Aspects were characterised by the Commissioner as 'reckless'.
As Mr Angwin has never held a firearms licence he has no adverse firearms history. However, his general history is poor in respect of both compliance with the law, and his behaviour during Police interactions.
Without disclosing the details of the contents, the Confidential evidence poses further concerns. Mr Angwin clearly knows that the evidence must (at least in the Commissioner's view) be supportive of their decision to refuse the licence. He is unable to otherwise glean the nature of the evidence other than an understanding that it is unfavourable to his position and is not open to challenge by him.
Whilst this is ordinarily unfair, however as noted in the Parliament when this and similar provisions were introduced, due to the special nature of these licencing regime matters concerning community and public safety (including the safety of individuals who hold such licences) steps can be taken to review holdings (where relevant) in the absence of the party to whom they relate.
Notwithstanding the various positive aspects and elements of the applicants character, as set out in his reference received without objection (Exhibit 'A-3'), the public would be entitled to take into account Mr Angwin's criminal and traffic history as being indicative of a general disregard for the law. Whether they would be concerned that someone with that history would be entitled to access and use firearms is a matter that would turn on the evidence. However, in doing so the public would weigh up the protective nature of the firearms regime and form a view in that context.
I note that the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report: The purpose of the reference to 'public interest' is to ensure that private interests are not 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.
In Toleafoa at paragraph [25], the Appeal Panel said that the public interest: "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
Again, I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.
In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In applying the discretion for the public benefit, having considered both the open evidence and the confidential evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) which would prevent Mr Angwin being granted the licence.
Whilst his criminal antecedents are not significant his traffic record shows a disregard for the law, especially the high speed incident. This in my view shows a disregard for public safety. In addition, I have placed some weight on the confidential material which whilst unfair to Mr Angwin as it is, is of some probative value and must be given some weight notwithstanding that it cannot be tested further in these proceedings.
In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "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".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, including the confidential evidence, it would not be in the public interest to grant the licence.
Having regard to the cases referred to above in my view it would be contrary to the public interest to grant Mr Angwin the licence and I so find.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the respondent.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following order:

Orders 1. The decision to refuse the Applicant's Category AB Firearms Licence is affirmed.

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

Amendments 28 October 2022 - Minor typing errors, corrected, on coversheet and main body text. 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: 28 October 2022

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Cases Cited (7)