Beleski v Commissioner of Police, NSW Police Force

Evidence

1. The Applicant provided a statement dated 20 September 2022 and a reply to the Respondent's submissions on 17 November 2022. He gave evidence, I asked him questions, and he was cross examined.
2. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.

Tribunal's approach

1. Section 63 of the 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 a 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. 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 at [28]-[34].

On what basis was the Applicant's licence application revoked?

1. The Applicant's licence was revoked on the basis that it was not in the public interest for him to hold a firearms licence and that he may not personally exercise continuous and responsible control over firearms. The delegate relied on comments reportedly made by the Applicant that he would use his firearm if his children were taken away from him, as well as his volatile domestic circumstances, which had resulted in a provisional AVO.
2. The internal reviewer affirmed the decision on the basis that it was not in the public interest for the Applicant to continue to hold a firearms licence. He was also said to have contravened a provision of the Act, namely breaching the Act's safe storage requirements. The internal reviewer also referred to the Applicant's domestic disharmony.

Respondent's contentions before me

1. The Respondent contended that there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances: s 11(4)(a) of the Act. It was also contended that it is not in the public interest for the Applicant to continue to hold a firearms licence. In addition, the Respondent relied on an alleged breach of the safe storage requirements.

Applicant's domestic circumstances: ss 11(4)(a) and 24(2)(a) of the Act

1. Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner, and hence the Tribunal on review, has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living and domestic circumstances. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 and New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32, and determined that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
2. The Respondent relied on allegations of domestic violence which gave rise to the AVOs against the Applicant.

Circumstances giving rise to a provisional AVO made on 27 June 2020

1. The Applicant and his ex-partner, S, were in a relationship for about 6 years. They have 2 small children. In June 2020 S left the family home, taking the children. The Applicant said in his evidence that he arrived home from work to find that they had gone. He tried to phone her without success. He recalled S had said that morning that she was taking the children to the park, so he first looked for them there. His mother told him S had taken the children to her parents' home.
2. The Applicant and his mother then drove to S's parents' home at Mosman, followed later by his father and brother. He said he knocked on the door but it was not answered. He saw there was a little clip-on video camera, presumably over the entry, which had not previously been there. He said he was not recording "them", so he did not want to be recorded, so he took the camera down and put it in a tree. He said he called the Police to come and help him, but S and her parents had already called the Police, because, from the Police records, they complained the Applicant was banging on the door.
3. Earlier in the day, S had made a video statement alleging domestic violence against the Applicant, which was not provided to me. She reportedly told Police about an incident on 18 June 2020. The Applicant asked to use her phone as his had been misplaced. He had taken her phone and trawled through the messages. He had acted, she said, "aggressively" and had grabbed her wrists in order to take the phone from her. His conduct, she reportedly said, had deteriorated since the birth of their first child. She told Police that the Applicant was "very controlling" and that he would argue with her in front of the children. She claimed that when the children were feeding a wild bird he had snapped its neck in front of them and then fed it to the dog. The Applicant said it was "a complete lie" and that S subsequently retracted this allegation.
4. S also told Police of an unsecured gun on the garage shelf at the Applicant's property and showed them a photograph of it. She also reportedly told Police that the Applicant had said that if Police came to take the children there would be a "shootout".
5. The Applicant was arrested. As a result, a provisional AVO was issued. The Applicant denied all the allegations against him, and no charges were laid.
6. The Applicant said he engaged lawyers to defend the AVO, but on the day of the hearing S said she did not fear him and the AVO was "dropped". He said that even her family did not want the AVO against him.
7. The suspension of his firearms licence was lifted on 18 November 2020 and his firearms were returned.

Circumstances giving rise an interim AVO was made on 7 July 2020

1. There was no information in the material before me which might have indicated to what the interim AVO related. It appears to have been linked to the earlier matter.

Circumstances giving rise to an interim AVO made on 14 May 2021

1. The Applicant wrote in his statement that when his relationship with S ended she took with her the mobile phone he had purchased for his business in November 2019. Sometime between the date of purchase and when she left their home a few months later, S had damaged her own phone, and, he said, he let her use his work phone, although he subsequently told Police that she had "stolen" it from him over a year beforehand; later he said it was a loan to her. He said that after she left him he had been asking her for months to return it but she had refused. He said she told him she would return it when he 'signed some documents', and this was confirmed in a text message. He said he went to Wollongong police station and spoke to an officer at the front desk and tried to report the phone as stolen. The officer told him that it was not a police matter and that he would need to get a property retrieval order (PRO) in order to have the phone returned to him. He said he asked about how he could otherwise retrieve his phone, given that the likely legal costs associated with applying for a PRO would be greater than what the phone was worth. He said he asked the officer whether it would that be okay if he could get possession of the phone without touching or doing anything to S. He said he was told that he could do that provided he did not hurt S or touch her in any way, because the phone was his property.
2. Approximately two weeks later, S was picking up the children from in front of his house and, the Applicant said, she placed the phone on the roof of her car while she loaded the children into the car. He took the phone and then removed the sim card (because it did not belong to him) and placed it on top of S's car. S was unhappy that he had taken the phone and was shouting so he tried to call Wollongong police so they could speak to her, but when there was no answer, he called Sutherland police station and spoke to a female officer. The officer, he said, also spoke to S via loudspeaker and told her that the phone was now in the Applicant's possession and because he had the receipts and evidence that he was the owner of the phone, there was nothing that she could do and that it was again not a matter for the police to get involved in. He said S appeared to accept what the officer said.
3. S later drove to Chatswood or North Sydney police station and made a report saying that the Applicant had stolen her phone and that he had reached into her car to take it from her handbag. In his evidence the Applicant said that his mother was on the verandah about 60-80 metres away and she would have been able to see if he had reached into the car. S told Police that she had wanted to speak to the Police officer the Applicant had phoned but he would not allow her to do so, and further, she did not believe he was actually speaking to a Police officer.
4. As a result of S's complaint, Constable Roberts of North Sydney Police took out an AVO against the Applicant, and the Applicant's firearms were consequently seized and his licence suspended. The Applicant subsequently showed Constable Roberts the receipts for the phone, copies of his messages to S asking for its return, and records on his phone of the calls to Wollongong and Helensburgh and (a longer call to) Sutherland police stations, on the day of the incident. Constable Roberts told him that the AVO would be dropped and his firearms would be returned. The Applicant attended Wollongong Court a few days later and the AVO was dropped. His firearms licence, however, was not reinstated.
5. The Applicant was cross examined at length about the phone, but his account remained consistent. The Respondent suggested that he was "fixated" on recovery of the phone, and that its retrieval was a "powerplay". The Applicant said it was not the value of the phone but a matter of principle that it be returned, as it was his and that he had paid for it. As to a "powerplay", he observed that S had said she would only return the phone after he had "signed the papers". It was suggested to him that he had left S and his children without a mobile phone for their return trip to Sydney. As the Applicant pointed out, it was only an hour trip, the car was fairly new so was unlikely to break down, and a phone could hardly be regarded, in those circumstances, as a "survival tool".
6. The Applicant said, that had he known that retrieval of the phone would have caused so much trouble, he would not have bothered.
7. The Respondent was critical of the Applicant for not having included the phone as part of the property settlement he reached with S. He said he told his lawyers about the phone but it did not feature in the property settlement which related solely to a property valued at $1.2M.

Other allegations in respect of the Applicant's domestic circumstances

1. On 19 January 2021 S attended Mosman Police station complaining, on the advice of her lawyer, of (unspecified) "harassment and intimidation" by the Applicant. The only allegation to which she specifically referred was that the Applicant may have intentionally trod on her foot. She reportedly held no fears for her safety and declined to "support a charging process". No action was taken by Police.
2. Conclusion in relation to the Applicant's domestic circumstances
3. In his statement of 20 September 2022, the Applicant stated that there have been no further incidents with S since the return of the phone, that he has commenced a new relationship, and there will be no further incidents arising with his ex-partner as all previous issues between them have been resolved. There was no evidence to the contrary.
4. Notwithstanding the dismissal of the AVOs against the Applicant and that no charges were laid against him, the Tribunal is to take into account matters indicating criminal conduct even though the Applicant was not charged with offences: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. See also Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60].
5. In Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 at [42] I recently observed that I generally agreed with the principle in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), to which the Respondent referred:
6. ... in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of a firearm; see [103]. In Grenfell , the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a IADVO that was, as here, later withdrawn.
7. I accept that allegations of domestic violence frequently do not result in convictions, and that AVOs are often withdrawn because the alleged victims do not wish to proceed. The Respondent contended that as S had complained that the Applicant was "very controlling", it is not fanciful to suggest that the AVOs would not have withdrawn without pressures being applied by the Applicant on S. There was, however, no evidence whatsoever that this was the case. Further, the AVO of 14 May 2021 was withdrawn by Police when the circumstances in relation to the Applicant taking back his phone were explained. I, too, accept that the Applicant purchased the phone for his business, loaned it to S when hers broke, and he had sought its return over a long period. Telephone records reveal that, as the Applicant claimed, he contacted Police on the day he retrieved it, contrary to S's assertion, and I accept that he did so have his entitlement explained to S. There was conflicting evidence about whether the Applicant reached into the car to take the phone from S's handbag, but it is unlikely that that is the case, given that S appears to have been mistaken about the call with Police, so she may also have been mistaken about the precise circumstances by which the Applicant obtained possession the phone. I observe that I did not have the benefit of hearing S's account. It is unremarkable, in my view, that a phone, for which the Applicant paid just over $1000, did not feature in the property settlement between the Applicant and S - its value was de minimis, compared to the value of the sole asset the subject of the settlement, said to be valued at $1.2M.
8. As to S's allegations on 19 January 2021 there was no evidence of what was the "harassment and intimidation" by the Applicant that S alleged. S complained that the Applicant may have intentionally trod on her foot. She reportedly held no fears for her safety and declined to "support a charging process". She reportedly attended at the instigation of her lawyers, and possibly her parents. Her complaint was without substance and no action was taken. As such, very little weight can be attached to her complaint, which, in any event, does not appear to have been put to the Applicant.
9. It was submitted that I should view the Applicant's reported threat of starting a "shootout" with Police seriously. I agree that this is a serious allegation. As far as I could see though the allegation has not been put to the Applicant at any time, including before me. In those circumstances I am not prepared to find that the Applicant made such a threat, especially, as I have previously observed, I did not have the opportunity to hear the assertion from S, either in her evidence or via the domestic violence video recording she made. Alleged breach of the safe storage requirements
10. S showed Police a photograph of a firearm unsecured in the garage on the Applicant's property. On 26 June 2020, acting on S's information, Police executed a search warrant at the Applicant's address. Police seized from a shelf in the garage an unsecured .22 calibre rifle barrel which, Police records show was "quite rusted and corroded" and missing the stock. Police also located a plastic container on the same shelf which held three firearms magazines and 325 rounds of .22 calibre ammunition, including some which was loose, which the Applicant said in his evidence was, like much of that part of the garage, "covered in dust". The Respondent contended that the Applicant had breached of the general requirement for safe storage: ss 39 and 40 of the Act.
11. In his evidence the Applicant described the layout of the 10-acre property on which he lives. He said his parents and brother live in one house and he and S lived in the other house about 80 metres away. Ten metres from his parents' house is a 3-car garage and workshop. His father's work vehicle, his mother's car and his brother's car are parked in the garage. At the rear of the garage is the Applicant's gunsafe, which is bolted to the concrete floor and bolted against a brick wall. In his evidence he said that he had even stored his keys in a locked box that could only be accessed by the use of a screwdriver and that Police had been impressed by this level of security.
12. The Applicant said the rusty firearm was located on a shelf behind the door. The Applicant said in his evidence that he had never seen the firearm before, even though he had been in and out of the garage his whole life. The Applicant suggested to Police that, as S is "vindictive", he thought it was a "setup", but stopped short of alleging the firearm had been planted. The Applicant told Police that his only suggestion as to how the firearm came to be there was that it may have been placed there by his father, who had had a licence about 30 years ago, or by his grandfather, who was in the military many years ago and, until his death in early 2019, had also lived at the property.
13. Police observed the whole area was very cluttered and "a real mess". Police interviewed the Applicant's father who they accepted was the regular user of the garage and that he had not paid attention to that area of the garage in years. The Applicant's father told Police to destroy the firearm and the ammunition. No action was taken by Police in relation to the firearm or ammunition, either against the Applicant or his father.
14. Since his licence was issued on November 2017 the Applicant has passed at least one inspection of his firearms safe-keeping arrangements. Is the Applicant a fit and proper person to hold a firearms licence?
15. Section 11(3) of the Act requires that the Tribunal be 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.
16. The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380.
17. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms because the misuse of firearms can result in catastrophic consequences: see Zarour v Commissioner of Police [2022] NSWCATAD 262 at [14].
18. The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms, in particular, that the Applicant may not personally exercise continuous and responsible control over firearms as a result of his way of living or domestic circumstances: s 11(4)(a) of the Act.
19. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg RFD SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence.
20. While the Applicant may have had a volatile relationship with S from time to time, his evidence was that that is no longer the case and they have an amicable relationship, especially in relation to the shared care of their 2 young children. There was no evidence to the contrary. He is in a harmonious domestic situation, has a new baby, and family support. He has a responsible role as a self-employed sub-contractor in the specialised field of elevator maintenance.
21. I do not consider the evidence sufficient to satisfy me that the Applicant should not have a firearms licence because of his domestic circumstances. I observe that he has no criminal record, no AVOs and has never resorted to inappropriate use of a firearm.
22. Further, I consider the circumstances of the discovery of a rusty part of a firearm and loose ammunition to have been adequately explained. Police were not particularly concerned - no charges were laid and the discovery did not precipitate the suspension or revocation of the Applicant's licence. There was adequate evidence, in my view, that the firearm and ammunition did not belong to the Applicant and that he did not know about them. Investigating Police were content that the firearm and ammunition surrendered by the Applicant's father and destroyed.
23. For these reasons, I am comfortably 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. Public interest
24. The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. The Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
25. As observed above, the Applicant has no criminal record. The "public interest" factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Applicant said that he wishes to have his firearms licence reinstated because he goes clay target shooting and range shooting for sport. Private interests such as the pursuit of a hobby however, are not the only matters 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. As I have observed many times, these matters 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].
26. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. 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, at [64] - [66].
27. The principle in Ward 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] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 (Webb) at [32].
28. The evidence, in my view, does not establish a real and appreciable risk to public safety: per Webb.
29. Based on the facts and circumstances discussed above in relation to the AVOs, his current domestic circumstances and the unexplained firearm at his property, I am confident that the Applicant would be likely to continue to possess and use his firearms in accordance with the strict legislative requirements. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to continue to hold a firearms licence.

Conclusion

1. My conclusion is therefore that the Applicant is a fit and proper person to hold a firearms licence, and it would not be contrary to the public interest for him to hold a licence.
2. The Applicant's licence expired on 29 November 2022, that is, before the matter could be heard. Neither the Respondent, nor the Tribunal on review, has power to reissue an expired licence: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. The practical effect of this decision then is that the Applicant, if he seeks a firearms licence, will need to make a fresh application. I acknowledge that the Applicant will be required to disclose that he had previously had his firearms licence revoked, notwithstanding this decision. In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take this decision into account. DECISION
3. The decision under review is set aside. 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: 16 December 2022