Biddle v Commissioner of Police

Tribunal 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 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. 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].

Evidence

1. The Applicant filed a statutory declaration dated 30 October 2021. He also provided character references from Tiela Moffitt dated 13 October 2021, Lavinia Hutchison dated 15 October 2021, Stephen Page dated 25 October 2021 and Jay Frazer dated 6 October 2021, with whom the Applicant has worked for 5 years. He also provided was a letter from David Scriven dated 11 October 2021 giving him permission to shoot at his Muswellbrook properties (and another property in Queensland).
2. In addition to the documents and supplementary documents filed under s 58 of the ADR Act, the Respondent relied on the affidavit of Senior Constable Andrew Dryburgh dated 28 November 2021. The Respondent also relied on Confidential Material annexed to a statement of Senior Sergeant Rebecca Scott dated 7 December 2021, and applied, under s 59 of the ADR Act for confidentiality orders in respect of that material. An Order was made, with the consent of the Applicant, as follows: The Confidential Material, and any information therein, is not to be disclosed to the Applicant or his legal representatives pursuant to s 64(1)(d) of the CAT Act and is not to be published (including in the Tribunal's reasons for decision) pursuant to s 64(1)(c) of the CAT Act.

2005

1. On 11 August 2005, when the Applicant was aged 20, he came to the attention of Muswellbrook Police for what was considered suspicious behaviour. His vehicle was parked outside the residence of a person suspected of being involved in drug dealing. He was later stopped by Police and submitted to an RBT which returned a negative result. When asked by Police where he had been earlier in the evening he replied "Nowhere, I'm just driving around''. He later said he had been babysitting all night. He denied knowing the person at the residence, although Police had seen him talking to the person. He later said he did know the person.
2. Some hours later, Police again observed the Applicant, driving at speed, so he was pulled over. When Police questioned him about his driving manner, the Applicant allegedly stated "I wasn't going that quick. I've just been applying for a job at Bayswater Power Station". When Police asked why he would be applying for a job at 9pm at night, the Applicant stated "I just put my name down". Police were later informed by both Liddell and Bayswater Power Station security staff that no one had been there earlier applying for work. The Applicant said in his evidence that he had worked at Bayswater Power Station since he was 18, but it has extended shutdown periods.
3. A search of the Applicant's vehicle was undertaken during which he volunteered that there were two hunting knives in his bag. The Applicant received a warning in relation to the two hunting knives.
4. In his evidence the Applicant said he could not remember this interaction with Police at all.

2007

1. On 10 October 2007, when the Applicant was aged 22, he again came to the attention of Muswellbrook Police following a report that he and two other young males were fighting under a railway bridge. When Police spoke with the Applicant it was ascertained that the three men knew each other and had become involved in a heated argument, with pushing and shoving. Police observed that the Applicant was well affected by alcohol. The Applicant was warned in relation to his behaviour.

2008

1. On 21 June 2008, when the Applicant was aged 23, Police received a report regarding an incident that occurred between the Applicant and his then partner; at the time they were in the process of ending their relationship. It was reported to Police that the Applicant and his partner had an argument which started via phone, while he was heavily intoxicated. When the Applicant arrived home 10 minutes later, they continued arguing. The Applicant reportedly threw all his partner's belongings out onto the front yard. Abusive shouting continued and the partner's vehicle may have been damaged. An Apprehended Violence Order (AVO) was applied for and granted. A few days later the Applicant attended Muswellbrook Police station where he was arrested and charged with the assault of his partner, who, at the time, was 6 months pregnant. The Applicant was found guilty of common assault on 8 December 2008, and was placed on a good behaviour bond pursuant to s 10 of the Crimes (Sentencing Procedure Act) 1999.
2. The Applicant said in his evidence that he now has a good relationship with his former partner and they successfully co-parent their 13 year old daughter. The Applicant observed that there had been no allegations of violence since that time at all.

2009

1. On 22 September 2009, the Applicant was found guilty and convicted of the following offences: 1. unlicensed for class, class C/R/LR/MR - 1st offences, for which he was fined $400; and 2. class A M/V exceed speed > 30km/h <= 45km/h, for which he was fined and disqualified from driving for three months.

2018

1. On 13 November 2018, the Applicant came to the attention of Police, after they received notification from Muswellbrook Hospital that the Applicant had been admitted with a gunshot wound. The nurse who reported the incident noted that the Applicant had told her that he had been driving home, found a firearm on the side of the road, picked it up and it "went off".
2. The Applicant said he was driving his home from work which is approximately 25 kilometres outside Muswellbrook. He pulled over on the largely rural sealed country road to urinate. While there, he saw what appeared to be a rifle about 2-3 metres off the side of the road. He looked around to see if there was anyone who would be the owner of the rifle. As to why he did not contact Police then he said that reception in the area is poor. Rather than leave the firearm on the side of the road, he picked it up and placed it in the empty tray of his ute. In his evidence he said that he thought that was safer than leaving it by the side of the road. He agreed that it was likely to have slid around in the empty tray and that that was unsafe, but said he did not think too much about it at the time. He continued the 6 or so kms to his home with the intention of taking the gun to the Police the following morning. As to why he did not contact Police when he arrived home, he again said that reception was poor.
3. When he arrived home, he said he went inside, where he consumed two pre-mixed Jack Daniels and Coke over a couple of hours, leaving the firearm in the tray of the ute. As to why he did not take the gun inside on arrival he said in cross examination that he forgot about it.
4. In his statutory declaration he said that, as the ute was parked on an open property out of town, he did not feel safe leaving the firearm in the tray of the ute overnight while he was asleep in the house. In his evidence he said that the property is secured by a locked gate and has a 400m dirt road up to his home. The nearest property is about 1 km away and there is another property further down the road. It was "dark" when he decided to take the firearm out of the ute tray and store it inside the house for the night, although he agreed in cross examination that it may have been dusk. He went down the front stairs to the ute and retrieved the firearm out of the tray. Upon going back up the stairs into the house he tripped on one of the steps, lost his balance and the firearm accidently discharged causing an injury to his left hand - the bullet entered the front of his left hand and exited through the other side of his hand.
5. According to Senior Constable Dryburgh the Applicant told him that when he got home he took the rifle inside, and he had been injured as he walked up the stairs and onto the verandah. He admitted that he had had a couple of drinks before the incident.
6. The Applicant said in cross examination that he was not aware at the time that it is an offence to handle a firearm while affected by alcohol, although he had learnt firearms safety from his father and grandfather, and knew it was not safe to handle firearms while affected by alcohol. Similarly, he said, he had learned that it was not safe to leave a firearm unsecured in a vehicle.
7. After being shot he was in a great deal of pain and in shock and his hand was bleeding profusely. He applied basic first aid and decided to drive towards town. Before leaving his home, he dragged the rifle inside the house, and locked the front door.
8. At some point he pulled over and called one of his friends and told him he had been injured and asked him to take him to the hospital. He was admitted to hospital, and Police were advised at 7.12pm. He was subsequently transported to John Hunter Hospital in Newcastle for surgery, and where he spent two to three nights.
9. Police questioned the Applicant about the incident, and although he was still in some shock and receiving pain medication, he provided details of the incident and gave Police permission to enter his home and provided the exact location of the rifle inside the home. While he said in his statutory declaration that he requested his then partner to provide his house keys to Police, he recalled in his evidence that it may have been his friend, Samuel Feeney, who had the keys to his house.
10. He wrote that he was, and continues to be, extremely embarrassed and ashamed by the incident, as he knew he should have decided to return to town that night when he found the rifle and place it in the care of Police rather than take it home and do it the following day. In his evidence he said that if he ever found a gun beside the road again, he would again pick it up, but would make sure it was unloaded.
11. When Police attended the Applicant's home early the next morning, they located the firearm on the floor of the living area, and it was seized and taken to Muswellbrook Police Station. Police observed there had been an attempt to remove the serial number on the firearm, and, as no record of the firearm could be found, determined that it was unregistered.
12. It was submitted on the Applicant's behalf that his version of events has been consistent from his first report of the incident to the current day. It was the Applicant's submission that his unwavering recount of events provides support to the proposition that the incident was a genuine accident and that it was a consequence of a lapse in judgement which can be attributed to ignorance as to the proper manner in which to handle and store firearms.
13. [NOT FOR PUBLICATION]
14. [NOT FOR PUBLICATION]
15. The Applicant denied that he had ever used drugs. He also denied ever knowingly living at premises where there were drugs.

Applicant's traffic history

1. The Applicant has an extensive history of traffic infringements, dating back to his teenage years, including: 1. 1 March 2003: rider not wear bicycle helmet/fitted/fastened 2. 12 March 2003, 25 March 2005, and 18 June 2005: not comply with conditions of provisional licence (not display P signs) 3. 14 September 2006: exceed speed limit by not more than 15km/h whilst driving a motor vehicle 4. 28 July 2007: failure to notify change of address 5. 23 July 2008: class A motor vehicle exceed speed < 15km/h 6. 6 May 2009: drive using hand-held mobile phone 7. 18 December 2009: drive contrary to roundabout road rules 8. 30 May 2013: use unregistered class A motor vehicle 9. 9 October 2015: exceed speed limit by not more than l0km/h whilst driving a motor vehicle 10. 19 February 2016: exceed speed limit by more than 10 km/h but not more than 20km/h whilst driving a motor vehicle 11. 11 February 2018: use light vehicle with defective brake light
2. The Applicant's driver's licence has been subject to one (demerit point) suspension and five (fine default) suspensions, the most recent of which occurred in 2019.
3. The Applicant wrote that he had made some reckless decisions in relation to his driving when younger but had learned from this and in the past decade had come to attention in relation to only two lower end speeding offences. This assertion is clearly inaccurate. There was no dispute though that the Applicant now qualifies for the "Fair go for safe drivers" initiative of Transport NSW such that his licence fee is discounted on account of his safe and satisfactory driving record. He submitted that is a fair indication of his ability to comply with, and abide by, public safety legislation.

Character references

1. The Applicant provided a number of character references from colleagues and friends in the local community who either directly or indirectly acknowledged the incident in 2018 and, nonetheless, support him in his application to have a firearms licence. Curiously, no reference was provided by his friend, Samuel Feeney who, the Applicant said in his evidence, is his daughter's godfather and to whom he had entrusted his keys to his home.
2. Ms Moffitt wrote of the Applicant being a caring and responsible young man, and she had always found him to be "morally superior" and level-headed. She regarded the "incident" of 2018 to be a severe error in judgment, and out of character. Ms Hutchison referred to the incident as "an accident". Mr Frazer, who both works and hunts with the Applicant, referred to the Applicant's concern for safety in the workplace and in his "extra curricular activities".
3. The Applicant wrote that he has always been honest with his friends who "come hunting with [him]"and in the wider community about the details of the events of November 2018 and, while embarrassing and shameful to admit that to people who are also keen hunters and close friends and colleagues, he believed their references reflected that that incident is not an accurate representation of who he is as a person or an owner and handler of weaponry.
4. Ms Hutchison wrote of the Applicant having taken (unspecified) "proactive steps to mitigate any potential future risk". Mr Frazer commented that the Applicant had "[taken] it upon himself to familiarise himself with the working of firearms through safety courses and online tutorials…", although this is at odds with the Applicant's own evidence that he only undertook the mandatory training in association with his firearms application. Mr Scriven, who has given the Applicant unrestricted permission to hunt feral animals on his 3 properties, was, the Applicant conceded, unaware of the incident of 2018.
5. All of the character witnesses have known the Applicant for between 5 and 16 years, possibly more. None referred to the Applicant's earlier misconduct, in particular, the AVO in 2008 (when the Applicant was aged 23), although Mr Page referred to him as having been "a little unruly as most teenagers and young adults are". The Tribunal has repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an applicant's negative history: per Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, and more recently, Rose v Commissioner of Police [2021] NSWCATAD 158 at [39].

The public interest: s 11(7) of the Act

1. The Respondent contended that it is not in the public interest for the Applicant to hold a firearms licence. In particular, it was contended that he: 1. was previously involved in an incident with a firearm, which resulted in him shooting himself in his hand whilst intoxicated and unlicensed to possess and use firearms 2. failed to demonstrate candour with Police during prior interactions, as well as violent behaviour; 3. has a history of traffic infringements and licence suspensions, suggesting that he disregards regulations aimed at ensuring public safety.
2. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act. It 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 deciding whether to exercise a discretion adversely to an individual: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25]. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing and public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
3. In the oft-cited decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28], Hennessy DP 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].
4. 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].
5. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. The Tribunal must consider the past conduct of the Applicant as a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

Incident with a firearm

1. The issue of most concern is the incident where the Applicant allegedly found an unregistered firearm and subsequently shot himself after having consumed alcohol. While no charges were laid in relation to the incident, some aspects of the Applicant's conduct are of concern. Firstly, he did not contact Police when he allegedly found the firearm on the side of the road. Although it was his evidence that he proposed to do so the following morning, it was not late when he found the firearm and he could have made the return journey into town - about 20 kms - to the Police.
2. Secondly, despite having grown up around his father and grandfather and their firearms, he did not check to see if the firearm was loaded, he did not identify that its serial number had been obliterated, and he placed the firearm, unsecured, in the tray of his ute where he left it unattended for a period of time.
3. Thirdly, notwithstanding that his father and grandfather taught him from a young age to be respectful and cautious of the dangers of firearms and to always handle them with care and that they were always extremely cautious and safety-conscious when handling firearms, he handled the firearm after consuming alcohol.
4. Finally, notwithstanding being injured by the firearm, he attempted to drive into town, probably whilst affected by alcohol.
5. Such conduct raises concerns regarding the risk posed to public safety should the Applicant obtain a firearms licence. When considering whether there is a reasonable risk to the public, the Tribunal is to consider the risk to the Applicant himself, as a "member of the public": Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]. I observe that the Applicant has a history of violent behaviour when affected by alcohol, albeit now about 15 years ago. His conduct in 2018 - whether because he was affected by alcohol or because of carelessness - could have resulted in serious harm or even death and is the very kind of conduct which the strict requirements in the Act seek to prevent. I do not regard the risk as "minimal, fanciful or theoretical": per Webb -v- Commissioner of Police, NSW Police Service [2004] NSWAD 110 at [32].
6. The Applicant said that, since that time, he has attempted to better himself and learn from that experience by enrolling himself in "several" firearms safety and hunting courses to ensure that he is properly educated on the inherent safety requirements which come with handling firearms and weaponry. Much was made of the Applicant having sought out, of his own volition, further education in order to better inform himself on the requirements which come with the privilege of holding a firearms licence. In fact, he conceded in cross examination, that he has only undertaken a compulsory firearms safety course as a prerequisite to applying for a firearms licence. This, he said, has given him further insight into how firearms need to be handled and stored and has provided him with further insight into how he could have handled the situation in 2018 better from the outset. It is inconsistent with his professed knowledge of safe handling learned from his father and grandfather.

Lack of candour in dealings with Police and violent conduct

1. The Applicant had previously come to Police attention for suspicious behaviour in 2005. He gave a confused account of his activities that evening. For example, he told Police that he had been at the Bayswater Power Station to apply for a job when security staff at both the two nearby power stations indicated that no one had been there to apply for a job at the time the Applicant claimed. His contention appeared unlikely and his overall explanation in relation to the evening appeared to be an attempt at obfuscation.
2. The report made by Police at that time was that the Applicant may have been involved in suspected drug activity. This incident also suggests that the Applicant was not honest with Police about his behaviour, which raises concerns regarding his ability to be honest in future contacts with Police, such as would occur in relation to safe storage inspections and in relation to applications submitted to the Firearms Registry. I accept that this conduct was now some 16 years ago.
3. [NOT FOR PUBLICATION]
4. I accept that the Applicant does not have an extensive criminal record. He does, however, have a history of violence, albeit now over a decade ago when he assaulted his ex-partner. He was found guilty of common assault, and placed on a good behaviour bond. I observe that, had the Applicant sought a firearms licence prior to December 2018, the AVO imposed in 2008 would have mandatorily precluded the issue of a licence: s 11(5)(c) of the Act. While the mandatory refusal no longer applies to him, the conduct, nonetheless, is to be taken into account in considering if the Applicant may pose a risk to public safety.

Breach of traffic laws and regulations

1. It was submitted by the Respondent that the Applicant's extensive history of traffic infringements, discussed above, demonstrates a disregard for both public safety and his own safety.
2. The firearms regulatory scheme focuses primarily on public safety. The Applicant's poor history of traffic offences, some of which are repeated, shows a disregard for another regulatory scheme which aims, like the firearms legislation, at ensuring public safety: see Tannous v Commissioner of Police [2011] NSWAT 116); Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 at [81]. A disregard for a regulatory scheme aimed at ensuring public safety is a very relevant consideration in determining whether or it is contrary to the public interest for the Applicant to hold a firearms licence.
3. The Appeal Panel in Masterson v Commissioner of Police [2017] NSWCATAP 206 stated at [133]: In our view, the possibility that the holder of a licence may not comply with the law is a relevant matter in exercising a discretion to revoke a licence on public interest ground...the test is very wide and in matters of public safety and the possession and use of firearms, it could hardly be suggested to the contrary.
4. Given the Applicant's extensive history of traffic infringements and that his last recorded offences were as recent as 2019, I cannot be satisfied that similar conduct will not be repeated, given his long-standing disregard for the traffic regulatory scheme. Similarly, I cannot be satisfied that he may not disregard aspects of the firearms regulatory scheme.

What is the Applicant's interest in holding a firearms licence?

1. The Applicant is a keen outdoorsman who has a long history from early childhood of fishing and bow hunting with his father and grandfather from whom he said he learned about weapons, including firearms, and he has maintained his love of hunting and fishing throughout his life. Notwithstanding the Applicant's professed long-standing interest in shooting, he still took a further 18 months after the mandatory refusal period, discussed above, expired, to make his application.
2. He often takes his 13-year-old daughter with him when he goes bow hunting, both alone and with friends. He has always taught her to be mindful of the dangers of operating weapons whilst hunting, but also in the carriage of weapons to and from hunting and the storage of those weapons when not in use. He wants to be able to instil in his daughter the same values and knowledge which his father and grandfather instilled in him when hunting and handling weaponry. As observed, notwithstanding that familial training, he still acted in a negligent, and perhaps even reckless, fashion in 2018.
3. The Applicant wrote that he now has an opportunity to assist "several" property owners in the local area with vermin control in exchange for payment, although there was only evidence from Mr Scriven which might be consistent with this claimed opportunity. The Applicant wrote that he is embarrassed that this genuine mistake and lapse of judgment may prevent him from pursuing those opportunities.
4. 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 genuine reason for holding a firearms licence, cannot not be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".

Conclusion in relation to public interest

1. The Applicant wrote that he is confident that he "knew better" on the occasion he found the firearm, however made "a clear lapse in judgment". It was unclear if this related to picking up the firearm at all; failing to check if it was loaded; putting it, unsecured, in the ute tray; deciding not to immediately take it to the Police station; leaving it temporarily in the ute; or deciding to retrieve it after having consumed alcohol. There was not one, but multiple, lapses in judgment.
2. When considered with his lack of candour, his very poor traffic record, and, to a lesser extent, the matters referred to in the Confidential Material, I am not satisfied that it is presently in the public interest for the Applicant to hold a firearms licence. 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 unable to find with confidence, on all the evidence, that to grant the Applicant a firearms licence would entail virtually no risk to public safety.

Decision

1. For the reasons given above, the decision of the Respondent to refuse the Applicant's application for a 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 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: 06 January 2022