In his written evidence the Applicant said that a few weeks before 17 September 2020 his uncle, Peter Barnett, who owns and runs a 370 acre dairy farm, asked him to shoot some foxes on the farm as it was calving season. The uncle's evidence was that he owns a large dairy farm and that since the Applicant has held a firearms licence from age 18, he has undertaken pest eradication on the property. He wrote that on 17 September 2020 the Applicant was shooting foxes on his property with his permission in order to protect young calves on the land. He observed that the Applicant undertakes a similar role on his father's cattle farm.
The Applicant's account of that evening was that he had been welding in his shed from about 7.00-7.30 pm. His friend, and employee, Kalieb Raymond brought OP rum and cola cans to his place. Mr Raymond said he had purchased a six pack and drank one in the Applicant's shed, although, in his evidence, he said he drank 2 there. The Applicant and Mr Raymond's evidence was that the Applicant did not drink any of the cans in the shed.
The Applicant decided the welding was too noisy for the neighbours so, at about 9.30 or 10.00pm, drove his ute to his uncle's paddocks to shoot some foxes with his shotgun, taking 8 small-shot cartridges. Mr Raymond said he went with the Applicant for company and to hold the spotlight; he said the Applicant told him his uncle had asked him to shoot foxes. Mr Raymond, the Applicant said, drank some cans while spotlighting, although Mr Raymond said he only drank one more in the car while the Applicant was shooting. Mr Raymond's evidence was that the Applicant did not drink any of the cans until after he had finished shooting.
The Applicant's evidence was that they drove around and he shot at foxes for about 20 minutes until the ammunition ran out. They saw 4 foxes. Mr Raymond said that each time they saw a fox the Applicant stopped the ute and shot at the fox with a shotgun. He said the Applicant stopped shooting when he ran out of ammunition; he thought that about six shots were fired. The Applicant said they were out for about an hour.
After the ammunition ran out, the Applicant said he parked the car, and after putting the gun away, drank a can of rum and cola and, in rapid succession, started drinking a second can. Mr Raymond said that after the Applicant stopped shooting they parked for a while overlooking the river and they each drank a can. In all, Mr Raymond said, he had drunk 4 of the 6 cans, and the Applicant had consumed only two.
They then drove through the paddocks and stopped at a gate into the next paddock, by which time the Applicant was drinking his second can. By then it was 25-30 minutes since his last shot and he had just finished his second can. The Applicant said in cross examination that he was unaware that each can contained 1.9 standard drinks.
Police had received numerous '000' calls within a 20-minute period, reporting shots being fired in the area. Senior Constable Mann said the last shot was reportedly heard at 10.21 or 10.23pm. About half an hour later several Police attended the vicinity where the Applicant's ute was located and his vehicle was pulled over.
The Applicant said when he and Mr Raymond arrived at the gate bright headlights and torches came on, shining at them from the direction of the cattle grid. He got out of the car and saw figures with guns drawn yelling "Get on the fucking ground". Mr Raymond said he saw figures with guns drawn, screaming "Get out of the vehicle" and "get on the ground". Senior Constables Mann and Muscat denied the stronger direction to the Applicant and Mr Raymond. They denied that they had their guns drawn at that time.
The Applicant said he panicked and ran around behind his ute and stayed there until he was approached by Police. Mr Raymond said the Applicant jumped out the driver's door but he did not see where he went. Senior Constable Mann evidence was that the Applicant did not stand behind the ute as he claimed, but ran about 30-50 metres away from the vehicle in the other direction and climbed through a barbed wire fence. Senior Constable Muscat described the Applicant as having "run away" behind the car, but elaborated in cross examination that the Applicant was not "sprinting" although he was moving quickly. Senior Constable Muscat thought the Applicant had moved 15-20 metres from the back of his vehicle and that the Police were 10-15 metres to the front of the vehicle. The Senior Constables' evidence was that they gave chase. It was only then that they told the Applicant to "get on the fucking ground".
The Applicant said he was "immediately" arrested and handcuffed behind his back. Mr Raymond was also handcuffed. Mr Raymond said the Applicant became "fired up" and kept saying they had done nothing wrong and were not endangering anyone. He said the Applicant argued with Police about whether they were on private property.
Senior Constable Mann gave evidence of "the strong stench of intoxicating liquor" on the Applicant's breath. He thought the Applicant's eyes were watery and he was "clumsy" on his feet and the Senior Constable had to hold his arm to balance him to help him back through the fence. His clothing was in some disarray. His speech as slow and delayed in response. He considered the Applicant to have been "very intoxicated". In cross examination Senior Constable Mann said he considered the Applicant to be more intoxicated than Mr Raymond. This was "not entirely" based on the Applicant being argumentative. The Senior Constable denied he had overstated the Applicant's level of intoxication.
Senior Constable Muscat wrote that the Applicant was slurring his words and was slow to speak. There was a strong smell of alcohol on the Applicant's breath. He said he was unsteady on his feet and slow to walk. His eyes appeared red and glazed and he formed the view the Applicant was "well affected" by alcohol. He said the Applicant said he had not been drinking but his observation was that he clearly had been. He denied he had exaggerated the Applicant's level of intoxication.
Senior Constable Adele Gordon, who was at the scene of the arrest, in her statement of 23 October 2020, which was annexed to Senior Constable Mann's statement, said she formed the opinion that the Applicant was "moderately affected by intoxicating liquor". She could smell a strong odour of alcohol, his speech was slurred and he was argumentative with Police.
At Coffs Harbour Police station at 22.45pm the Applicant was observed by Senior Constable Borghouts. In cross examination Senior Constable Mann denied that he had informed Senior Constable Borghouts that the Applicant had been drinking. Senior Constable Borghouts observed the Applicant to have smelt strongly of alcohol. His face was flushed and his eyes were bloodshot. His speech was slurred, his balance, unsteady and his movements were sluggish. He considered him to be "well affected due to alcohol". He noted that the Applicant told him he was taking painkillers.
When each of these assessments were put to the Applicant in cross examination he responded that he was only "mildly" affected - having consumed two cans.
Senior Constable Mann thought Mr Raymond was "moderately" affected by alcohol when he and the Applicant were detained. In cross examination Mr Raymond was referred to the statement he had provided to Senior Constable Mann about the incident. There he was recorded as having said that he had been drinking at the Applicant's shed, and "Luke was drinking OP rum". He denied saying that the Applicant was drinking at the shed and believed he had worded it differently. He said he did not read the statement and had just signed it, although Senior Constable Mann said he saw him read it. In cross examination Senior Constable Mann confirmed that Mr Raymond did not say that "they" were drinking in the shed. He conceded he did not ask Mr Raymond when and where the Applicant was "drinking OP rum", and explained that it was implied that they had been drinking together in the shed.
Mr Raymond observed that the Applicant had refused a breath test and said that, when in his company that evening, before they were arrested, he did not appear to be under the influence of alcohol. Mr Raymond agreed in cross examination though that he had told Police the Applicant was "a bit tipsy". He agreed that when Police attended, the Applicant was "mildly affected" by alcohol. He did not think the Applicant's speech was slurred. As to whether the Applicant was argumentative, he said "to a degree", but it was more that he was "agitated". He said the whole experience was "pretty shocking" and "a bit intense" and that the Applicant was not thinking clearly.
The Applicant said Police told him they had received reports about gunshots and were quite aggressive towards them. Mr Raymond also thought the Police were very aggressive. The Applicant wrote that he told the Police that he had been shooting at foxes on his uncle's farm and had done nothing wrong. He became "upset" with how the Police were treating him. He refused to undergo a preliminary breath test because he believed at that time that he was on private property and did not have to submit to a random breath test. He denied he had refused the breath test and analysis because he was intoxicated or under the influence of alcohol; he had only had two cans.
The Applicant did not agree that he had been aggressive with Police, although he could not recall some aspects of the conversation as reported by Police. He denied that his inability to recall the conversations was because he was affected by alcohol.
The Applicant's evidence was that he did not drink any alcohol while he was shooting, nor had he been drinking at all earlier in the day; he said he was completely sober when he was shooting. He wrote that he had been taking Tramadol, a prescription painkiller, for a seriously blocked sinus. He said in cross examination that he was not aware that the cans had a high content of alcohol.
The Applicant reportedly said to Senior Constable Mann: "I was just having rums and shooting foxes". In cross examination the Applicant denied that this was the case; it was the "other way round" that is, shooting foxes, then having rums. Senior Constable Muscat could not recall if the Applicant said anything about rum.
The Applicant reportedly told Senior Constable Borghouts that alcohol had been consumed at his home but had declined to answer when was his first or last drink, the type of drink or the number of drinks.
In his evidence the Applicant said he did not know if, when apprehended, his breath smelt of alcohol. He did not think his eyes were watery or that his speech was slurred. He agreed that he had finished two cans. He said when Police arrived he as not thinking clearly and had "panicked". He agreed he was "a bit tipsy" and was "slightly affected" by alcohol. The bodycam evidence showed the Applicant speaking slowly, but it was unclear to me, if his speech was slurred or not. Also, the Applicant did not appear to be particularly unsteady on his feet and appeared to walk across the cattle grid virtually unassisted while his hands were handcuffed behind his back.
It was put to the Applicant in cross examination that, if he had not been drinking, there would have been no impediment to him taking the breath test, but the Applicant did not agree. The Applicant said he refused because he genuinely thought he was on private property and did not need to comply. This is consistent with the record of what he told Police when detained. He subsequently learned that it was in fact a gazetted road, as Police had contended from the outset.
Senior Constable Muscat's evidence was that, at the Police station, the Applicant was "going off" and "ranting" and calling him names and directing comments to him about who they knew in common, and shouting out what may have been the Senior Constable's home address. He said he had tried to ignore him, but he took it as a threat. He said he discussed the matter with his superior and decided to take the matter no further as he did not want to further "fire up" the Applicant. In cross examination he was referred to his statement prepared for the criminal proceedings and that he had made no mention there of the name-calling or where he lived. He explained that he endeavours to keep his court statements succinct and relevant.
[2]
Did the Applicant use a firearm while under the influence of alcohol?
Unfortunately, no transcript was produced from the defended criminal proceedings. This may have assisted in the analysis of the evidence before me.
The term "under the influence'' is not defined in the Act. I was referred to Sagacious Legal Ply Ltd v Wesfarmers General Insurance (No 4) [2010] FCA 482 in which Rares J at [112]-[118] conveniently referred to the leading cases on the term. The following propositions emerge from the cases:
A person is under the influence of intoxicating liquor if he has consumed such a quantity of intoxicating liquor as disturbs the balance of his mind for the quiet, calm, intelligent exercise of his faculties.
The expression "under the influence of intoxicating liquor" is difficult to express and apply with precision. Different people react to alcohol in different ways. There is no norm by which the affect on an individual of the ingestion of alcohol can be assessed.
Attending Police did not detain the Applicant until about 30 minutes after the last shot was heard. Consequently, in the absence of evidence that there were other shooters in the vicinity, Police attended the Applicant no more than 30 minutes after he last operated the firearm. In that time, according to both the Applicant and Mr Raymond, he had drunk two cans of rum and cola.
The Police evidence, which I accept, was that when apprehended and while at the Police station thereafter, the Applicant smelt of alcohol and had some features consistent with a degree of intoxication, such as red and watery eyes, being "clumsy" on is feet, and having slow and slurred speech. The Applicant admitted he was tipsy.
While I also accept that he was argumentative about whether he was required to submit to a breath test, I consider that less persuasive as an indication of intoxication, given that he was adamant that he was not required to undertake a breath test because of his firm belief that he was on a private, and not a public, road. Nonetheless, I accept that he was boisterous while at the Police station and indignant at being subject to a breath test.
The Applicant's evidence and that of Mr Raymond was to the effect that he had drunk 2 cans of rum and cola in what could be described as fairly rapid succession. Further, his unchallenged evidence was that he was taking medication, and I consider this may have further affected his ability to assimilate 3.8 standard drinks in about half an hour. One might query the wisdom of drinking while taking strong medication, although there was no evidence of contraindication. Also, there was no evidence that he was aware that his behaviour may be affected by consuming alcohol while medicated.
Mr Raymond did not say that "they" were drinking in the shed. I do not accept that it can necessarily be implied that they had been drinking together in the shed, especially given their firm evidence to the contrary. I accept that the Applicant told Police that he was just shooting foxes and having some rums. This, in my view, was not inconsistent with his account that he did not drink rum while he was shooting.
Importantly, the evidence of the Applicant, corroborated by Mr Raymond, was that he had not consumed any alcohol until after he had finished shooting. I carefully considered Mr Raymond's evidence. I observe that Mr Raymond is not only the Applicant's friend, but also his employee. It was not put to Mr Raymond that his job may be jeopardised if he did not support the Applicant in his account of the evening, neither was there evidence of whether refrigeration mechanic jobs were easy to come by in that area. I accept Mr Raymond's account of the evening, in particular, that the Applicant did not consume alcohol until after he had finished shooting.
The Applicant's evidence was that he had not been drinking at all earlier in the day. His reported account to Senior Constable Borghouts that he had consumed at his home was inconclusive as there was no indication when this was, the number of drinks or the type of drink.
Therefore, even if I accept all the Police evidence and conclude that the Applicant was, at the time he was apprehended, intoxicated, I am still unable to be reasonably satisfied, on the balance of probabilities, that he was intoxicated while using his firearm, as the Respondent contended.
[3]
The Applicant's alleged conduct in December 2020
Senior Constable Muscat gave evidence that in about mid-December 2020, at about 6 pm, while off duty, he attended a tavern in Bellingen. While he was waiting for his drink to be served, the Applicant approached him, although he agreed in cross examination that they both happened to be at the bar at the same time and that the Applicant had not actually sought him out. He thought the Applicant was "quite intoxicated". The Applicant allegedly said words to the effect: "no hard feelings". He said he "shut him down" and responded by saying "yeah, but your conduct that night was pretty ordinary". The Applicant allegedly then called him a "dog cunt", or perhaps, "you're a fucking dog" as he turned away, but loud enough for him to hear. The Senior Constable said he took his beer, walked away and ignored the Applicant for the rest of the time he was at the tavern, making no further eye contact with him. He said he did not want to upset the Applicant further. In cross examination, when it was put to him that the Applicant was trying to make amends, he said he had said something to the Applicant like "you're the one who made a fool of himself", or that he had been "an idiot".
The Senior Constable said he told others at the table and later, Senior Constable Mann, about the interaction with the Applicant. Senior Constable Mann confirmed in his evidence that his colleague had told him about the incident but he could not remember the details.
The Applicant said he was at the tavern for dinner with his parents and was definitely not intoxicated when he spoke with Senior Constable Muscat; he said he would have been refused service if he had been intoxicated. He said he wanted to smooth things over with the Senior Constable. He denied he was threatening or abusive or that he had called him a "dog cunt" or anything like that.
It was submitted on the Applicant's behalf that the conversation with Senior Constable Muscat commenced with the Applicant adopting a conciliatory tone and that it was unlikely he called the Senior Constable a "dog cunt after having said "no hard feelings". I do not agree that this necessarily follows. In any event, there was no reason for Senior Constable Muscat to have reported the alleged incident to Senior Constable Mann, other than if it had in fact occurred. I accept that the Applicant, having been rebuffed by Senior Constable Muscat, may well have muttered something which the Senior Constable found to be disagreeable, although his recollection of what was said was imprecise.
[4]
Public interest
The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. 'Public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25].
Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Respondent submitted that taking into account all relevant matters the Tribunal would conclude that re-issuing the Applicant with a firearms licence will pose a real risk to public safety.
I accept the Applicant's evidence that he has had an interest in shooting for some years, having held a firearms licence for 12 years. He is now aged 32 and a self-employed refrigeration mechanic who employs two workers. He is also a part-time farmer with a small farm. His father and uncle have beef and dairy farms nearby and the family works on each other's farms. His ongoing need for a firearms licence, he said, is to enable him to control vermin and manage sick stock on the family's farms.
Private interests are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Accordingly, the Applicant's interest in holding a firearms licence cannot not be given priority over the public interest.
As has been cited many times, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) at [7]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64]-[66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum: see also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36].
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
In his 12 years of having a firearms licence the Applicant has never come to attention in relation to misuse of firearms nor for having failed to comply with his statutory obligations as a licencee in his handling and storage of his firearms. There was evidence of only one firearms inspection - in 2013 - and all was in order. When the Applicant's firearms were seized following the revocation of his licence, similarly, they were found to be properly secured.
There was conflicting evidence as to whether the Applicant ran away from Police when apprehended. The Applicant said he did not try to flee and ran around behind his vehicle where he was arrested. The Police evidence contained some inconsistencies but both Senior Constable Mann and Senior Constable Muscat were clear that the Applicant had distanced himself from the vehicle and had moved away from apprehending Police. I do not consider this conduct to be indicative of disrespect for Police. In particular, I observe that he was not charged in relation to resisting arrest. I accept the evidence that the Applicant "panicked" when approached by Police and may have absented himself.
The Appellant conceded that he left the firearm in the vehicle unattended for a short time when apprehended by Police. However, by then there was no ammunition left, the firearm was not loaded and the Applicant was only a short distance away. There was no evidence that any surplus ammunition remained in the shotgun, nor that any was located in his vehicle. There was no risk to public safety.
There was a reference in the S 58 documents to a COPS Event dated 31 March 2007, when the Applicant was aged 17, in which the Applicant was said to have feigned an asthma attack in an attempt to avoid breath analysis. There was evidence that, nonetheless when he was convicted of Drive with a low range PCA, which would tend to suggest that an analysis was in fact undertaken, or he had been otherwise assessed as having that PCA. Unhelpfully, the COPS Event was not provided, neither was evidence called in relation to that Event. I am unable to draw any conclusion about the Applicant's conduct on that occasion other than in relation to the charge of which he was convicted. In June 2007 the Applicant was convicted of Drive with a mid-range PCA. The Applicant described himself, in relation to these offences as "young, immature and irresponsible" and since then, he said, has not driven over the limit. Because these offences are now over 13 years ago when the Applicant was aged 17 and 18, they are afforded less weight; he has had no further trouble with the law until the events of 2020.
The evidence was clear that the Applicant failed to undergo a breath test or analysis; indeed he has pleaded guilty to those offences. I have found that he was argumentative about whether he was required to submit to a breath test, because he was adamant that he was not on a public road. The Applicant's conduct did not result in a charge of attempting to intimidate or threatening Police. While it is unclear why no charges were laid, I note Senior Constable Muscat's evidence that he discussed the matter with his superior and decided to take the matter no further as he did not want to further "fire up" the Applicant. The decision then, was probably taken in the context of the officers' evaluation of the Applicant's sobriety. I do not accept that his indignation reflects a general disrespect for Police, especially as he often works closely with Police when performing his SES duties.
I accept that the Applicant is a respected member of his local community - he has been a volunteer member of the local SES for nearly 18 years, and his current role is as Senior Rescue Operator.
The Respondent submitted that the Applicant had been dishonest about the events on 17 September 2020, including now before the Tribunal. Consistent with my findings, I do not accept this contention.
Mr Plim, in his reference referred to the Applicant's display a high level of competence when handling firearms, and he was impressed with the Applicant's knowledge of the safe use of firearms, their safe storage and transportation. Mr Rose wrote of how highly regarded the Applicant is in his role as a SES volunteer for the past 17 years. The Respondent submitted that the references are of little utility: Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [79], because they do not address the public interest test. I consider that references can be of utility even though they do not specifically address the public interest test; indeed, consideration of the test is a matter for the Tribunal, not referees. I accept that the Applicant is valued in the community for his role in the SES. Further I accept that Mr Plim has provided relevant evidence about the Applicant's safe handling of firearms.
[5]
Conclusion
I have taken into account the Applicant's history and personal circumstances including his previous general good character and reputation. He committed no criminal offences for 13 years after his PCA convictions in 2007. He runs a business employing two people and also works on his family's dairy and cattle farms. He is a longstanding volunteer with the local SES. He has an unblemished history of safe use and storage of firearms for a period of 12 years. His genuine need for a firearms licence is for farming purposes.
In summary, while the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent the Applicant from holding the licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for him to hold a firearms licence, and I so find.
[6]
Decision
1. The decision under review is set aside.
2. A category ABC firearms licence is to issue 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
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: 29 October 2021
Parties
Applicant/Plaintiff:
Barnett
Respondent/Defendant:
Commissioner of Police
Cases Cited (11)
Tribunal approach
Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357.
Of particular relevance in the present matter, it is important to note that the standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 (Nakad) at [28]-[34]. Having said that, the law requires that a decision-maker take into account the serious nature of the allegations and their consequences: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
In Sudath v Health Care Complaints Commission [2012] NSWCA 171, which was discussed in Nakad, in the context of an appeal from a decision by the Medical Tribunal, Whealy JA, with whom Meagher JA agreed, expressed the principle in the following terms at [101]:
101 If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.
As was observed by the Appeal Panel in Nakad, Whealy JA had made it clear that the administrative decision-maker was not rehearing criminal matters that had already been determined by the District Court, but was entitled to consider all of the evidence and material before it and, in the process of making findings of fact, is entitled to give those matters significant weight.