Browne v Commissioner of Police, NSW Police Force

Issues for determination

1. In these proceedings the Tribunal is to determine whether the correct and preferable decision is to refuse the firearms licence application. This will require the Tribunal to determine whether or not: 1. the Applicant is a fit and proper person to hold the firearms licence; and/or 2. it is contrary to the public interest for the Applicant to hold the firearms licence.

Role of the Tribunal

1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. In this matter, the Tribunal's jurisdiction is conferred under section 75 of the Firearms Act 1996 ("the Act").
2. The Tribunal's role is to decide whether, having regard to the underlying facts in the matter and the applicable law, the decision is the correct and preferable one: section 63 of the ADR Act
3. Neither party bears an onus of proof. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

Applicable Legislation

1. The principles and objects of the Act as set out in section 3(1) provide: 3 principles and objects of ACT (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, …
2. Section 11(3)(a) of the Act, provides that a licence must not be issued unless the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
3. Section 11(7) of the Act, provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Fit and proper person to hold a licence

1. The Act places an emphasis on licensees being fit and proper to have possession of firearms without danger to public safety or to the peace. In this matter, one of the issues for determination is whether the Applicant is a fit and proper person to hold a licence under the Act. A person's fitness and propriety are to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
2. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
3. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
4. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. Fit' (or `idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

The Public Interest

1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The' public interest ' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
2. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
3. The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.
4. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph [28], Deputy President Hennessy said that in terms of public safety, while the Tribunal could never be totally satisfied that a person would not pose any risk to public safety if a licence is granted, "the Tribunal must be satisfied that there is virtually no risk".
5. The case of Ward involved a decision to revoke a firearms licence under section 24(2) of the Act. In Hoffman v Commissioner of Police, NSW Police Service [2003] NSWADT 89, the Tribunal confirmed that the test laid down in Ward also applied to the public interest test under section 11(7) of the Act for the refusal of a firearms license. Subsequent cases have affirmed this interpretation of public interest in the context of the Act: Saba v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 129 at paragraph [63].
6. In Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110 I stated at paragraph [32]: 32 The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Webb's prior conduct. The conduct of concern is that which has lead to his convictions. It is appropriate that any exercise of discretion accord with the principles and objects of the Act.
7. This view has been adopted in several decisions of this Tribunal See for example Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where in referring to Webb the Tribunal stated at paragraph [66]: The question of risk is therefore not 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.
8. The Applicant's prior conduct must be taken into consideration when assessing whether there is a real and appreciable risk associated with the grant of the licence. Against this must be weighed his long history of firearms use that is incident free and the Applicant's present knowledge, attitude and circumstances.

The Evidence

1. The Respondent relies on the evidence of Sergeant Brett Ryan and that of Senior Constable Tracy Fletcher. Sergeant Ryan provided a statement dated 29 October 2019. Senior Constable Fletcher also provided a statement dated 29 October 2019. Both witnesses attended the hearing and each was cross-examined.
2. The Respondent has also filed a bundle of material filed pursuant to section 58 of the ADR Act. This bundle includes records in regard to the Applicant's licence held in the COPS database. The COPS records include entries relating to the optometrist incident. The Respondent has also filed written submissions.
3. The receptionist did not provide any evidence and was not available to be cross-examined.
4. The Applicant relies on his own evidence and that of Ms Lyn Browne. Neither was required for cross-examination. A written reference was provided in support of the Applicant by Narrandera and District Pistol Club Committee.
5. Following the hearing the Applicant filed additional submissions dated 15 November 2019, despite the fact that no leave was given to do so. The Respondent did not take any objection to the Applicant's further submissions and has also filed supplementary submissions in reply. I have taken those submissions into account.
6. I am also aware that the Applicant filed supplementary submissions dated 19 November 2019. I have not considered those supplementary submissions.

Sergeant Ryan's evidence

1. Sergeant Ryan has been the Licensing Supervisor in the Murrumbidgee Police District since 2009. His evidence is that on 17 May 2018 he attended the Applicant's home and served the Applicant with a suspension notice under the Act. He cautioned the Applicant and explained the effect of the suspension notice. They discussed the optometrist incident and Sergeant Ryan informed the Applicant that he may have committed an offence by taking a pistol to the optometrist. He pointed out to the Applicant that he was only authorised to possess and use firearms in connection with the genuine reason of target shooting.
2. Sergeant Ryan also noted that he seized the firearms that were registered to the Applicant in accordance with the suspension notice. Police also seized another nine firearms that were stored at the Applicant's residence which belonged to the Applicant's son Edwin.
3. The Applicant subsequently took part in a recorded interview. Sergeant Ryan attached a transcript of that interview to his statement.
4. Sergeant Ryan stated that he has been a Police officer for over 20 years and that prior to the optometrist incident he had never heard of persons taking firearms with them to their optometrist appointments. He does not consider there to be a need for a person to do so as the same measurements could be achieved with the person holding their hand outstretched in a shooting stance.
5. Sergeant Ryan's evidence was not varied under cross-examination.

Senior Constable Fletcher's evidence

1. Senior Constable Fletcher stated that she conducted an interview with the receptionist and recorded her report in the COPS database. She annexed a copy of that report to her statement. She said that whilst taking the statement she observed the receptionist to still be shaking when discussing the optometrist incident. She said that the receptionist reported being scared and shaken and felt that she needed help.
2. Senior Constable Fletcher set out her understanding of what is required of a licensee to ensure safe use of firearms. In her view, the Applicant displayed total disregard for the general public's safety in relation to unwrapping the firearm and then pointing the firearm in the direction of the victim's head region. He has displayed total disregard for the safe handling of a firearm. She does not believe that the Applicant had any reasonable excuse to unwrap, display and point the firearm. It is her opinion that the Applicant is not a fit and proper person to be in possession of firearms or a firearms licence.
3. Senior Constable Fletcher's evidence was not varied under cross-examination.

The Respondent's submissions

1. The Respondent relies on Mr Winram's written submissions. In addition, Ms Norquay presented oral submissions. In summary, the Respondent submits that as a consequence of the Applicant's conduct during the optometrist incident the Tribunal could not be satisfied that the Applicant is a fit and proper person to hold a firearms licence. Further, the Respondent submits that it is not in the public interest for the Applicant to hold a firearms licence.
2. The Respondent contends that the Applicant caused fear and visible distress to the receptionist and submits that this elevates the seriousness of his conduct. It is submitted that the optometrist incident demonstrates that the Applicant cannot be trusted to act responsibly and without risk to public safety. His conduct indicates that he does not have the judgement to determine what is a responsible and legal activity or action, and that he cannot be trusted to have possession of firearms without presenting a danger to the public safety or peace. In those circumstances, the Tribunal would be satisfied that the Applicant is not a fit and proper person to hold a firearms licence.
3. It is submitted that it would be contrary to the public interest for the Applicant to be issued with a firearms licence for the following reasons: 1. the Applicant's conduct in carrying an unloaded firearm into a public place, and directing it at a person's face demonstrates that he has a disregard for the objectives in the Act, his obligations as a firearms licensee and for the safety of members of the public; 2. the evidence of Sergeant Ryan is that there is no need to take a firearm to an optometrist appointment, as the relevant measurements can be taken by a person adopting a shooting pose; 3. the Applicant failed to appreciate the seriousness of his action until informed by Police; and 4. the Applicant failed to take the necessary steps to ensure that his actions would not cause harm to persons he may come into contact with at the optometrist. For example, he failed to advise the optometrist that he intended to bring the unloaded firearm to his appointment, and failed to immediately explain to the victim that the firearm was not loaded when revealing it to her.
4. The Respondent's supplementary submissions reaffirmed this position.
5. The Respondent submitted that in the circumstances, the Tribunal should be satisfied that it would be contrary to the public interest for the Applicant to be issued with a firearms licence.
6. It is submitted that the Tribunal cannot be confident that the Applicant would not again contravene the Act whilst holding a firearms licence.
7. Therefore, the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence.

The Applicant's evidence

1. The Applicant's evidence is that before he went for his appointment with the Optometrist he removed his target pistol from the safe and disabled it by removing the cylinder and leaving it in the pistol safe. He wrapped the pistol frame in a tea towel folding the ends in and parcelling it so as it would not be visible or identified whilst carrying it to and from his car when he was outside.
2. While driving to Leeton he made sure that the pistol frame in its wrapping was out of sight. After he parked the car he took the pistol frame in its wrapping with him to the optometrist.
3. In his written statement he provided the following account of the optometrist incident: The receptionist asked if I had my Medicare card and if my details were correct on the system as I had been a customer before with the business. ... The receptionist asked me to take a seat on the North wall … facing the south wall where there was a display of spectacle frames on the south wall. I was looking at the frames and asked the receptionist if they were expensive. I walked toward the counter and chatted about the spectacles. I placed the fully wrapped Pistol frame on the top of the counter whilst I talked, with the barrel pointing to the north wall. I was asked about my spectacles which I had taken from my pocket and handed to the receptionist. She was curious as to why the left hand lens was frosted over to prevent seeing out of the left eye. I said I was a target pistol shooter and needed only to see from my right eye when looking at the target. As I explained I unwrapped the pistol frame and with my right hand lifted the pistol to tilt it upright saying at the same time It is unable to be fired and was unloaded and made safe. I then proceeded to lift the pistol to eye level facing the North wall and with my left hand showing the receptionist that I needed to focus on the front and rear sights which were needed to be seen by my right eye. I was not aware at that time that another patient had entered the business as I was facing the north wall and concentrating on showing the receptionist. The receptionist had obviously seen her enter as she was facing the door to the East and spoke to the lady who had come in. I immediately lowered the Pistol frame and drew it close to my body then as they talked I wrapped it up as it had been in the tea towel. I was asked to take a seat by the receptionist, which I did, as the next patient was shown into the back of the premises by the optometrist who had come out to speak to the receptionist. The receptionist asked me what I did and we talked away for about 10 minutes about my hobbies of collecting and restoring old equipment. It must have been close to my appointment time by then as the optometrist came out with the last patient and showed me to go into his office. I sat down and he and I passed the time of day and discussed what it was I was there for. He was told by me, as I had told the receptionist, that I had a pistol that was unloaded and rendered unusable and was completely safe. He said that was no problem and showed me to the seat where his equipment was set up. I had my left eye obscured and I raised my right hand to eye level pointing the pistol as I had shown for the receptionist. The optometrist moved his equipment back and forward and flicked lenses up and down asking if I could see the front then the same procedure for the rear sights. I would say I was in there for between 10 and 15 minutes at the most. I went back to the waiting side of the front counter and saw another Patient sitting waiting. I asked if the frames I already had could have the new lens fitted and the receptionist said they could, so I left the shooting glasses with her. I proceeded to pay for the consultation with my card and the receptionist was all the time ever since I had entered the business always polite and friendly. I had seen no change in her manner to me in all the time.
4. The Applicant appears to dispute that his conduct caused any fear or distress to the receptionist. He also took exception to the Respondent's reference to the receptionist as the "victim". He denied that he intended to cause her any harm.

Ms Lyn Browne's evidence

1. Ms Browne provided a written statement in support of her husband and also attended the hearing and gave evidence. She was not cross-examined.
2. She has known the Applicant since 1967 and they have been married for over 50 years. Her evidence is essentially an account of the police attendance at their home on 17 May 2018. Her evidence is not in dispute.

The Narrandera and District Pistol Club Committee reference.

1. The reference states: Mr Richard Brown has been a long term member of the Narrandera and District Pistol club. In excess of 30 years of responsible, competitive and legal Target Shooting. In that time he always demonstrated safe use of his Pistols as well as storage and transport in locked cases. At no time has he displayed irresponsible behaviour that would make him an unfit person to hold a Target Pistol Shooting License. The Club committee considers Richard to be one of our founding members and someone who is very committed to this sport. Richard has enjoyed competing in his chosen sport over many, many years. As we age Pistol shooters require corrective lenses which are used in specialised shooting glasses. The prescription for these lenses is different to reading or distance glasses. Our focus needs to be on the front sight around 1 meter from the eye. Optometrists that specialise in this service usually request the shooter to bring in a pistol to confirm the distance required and check the sharpness of focus. The Club committee ask that consideration be given to the fact that his intent was not to harm or offend. Just seek a prescription for a new prescription lens. We hope that this misunderstanding can be resolved so that Richard can continue in his much loved chosen Sport.
2. This reference appears to contradict the evidence of Sergeant Ryan that he does not consider there to be a need for a person to do so as the same measurements could be achieved with the person holding their hand outstretched in a shooting stance.
3. The Respondent did not require anyone from the Narrandera and District Pistol club for cross-examination.
4. In his additional submissions dated 15 November 2019 the Applicant set out a summary of his case. This essentially repeats the information that he had provided in his statement. It does not change the evidence that had been presented in any material way. He continues to believe that he is a "victim of a set of unforeseen circumstances" but he did express regret that "someone else was also a victim of those circumstances".
5. He stated he was shocked and threatened by the approach adopted by Sergeant Ryan. He believed that he had been bullied by the police and treated poorly by firearms registry. He also stated that: I supposedly admitted to all of the points made by the alleged victim on the evening of the 17th May 2018. All this information is based upon a creation by Const Tracey Fletcher who has made her own interpretation of what she has been told of the events of 16th May 2018 it is not in my belief a true statement of what actually happened At the time I was not in a position to take in all of those points which Sgt Ryan said in the COPS report, that he put to me.

Discussion

1. This is a rather unfortunate matter. It is apparent that the Applicant had no intention to harm or offend the receptionist or anyone else. He sought to obtain a new prescription lens for his specialised shooting glasses.
2. The Applicant's evidence is that he disabled the pistol before taking it to the optometrist and that he took some care to wrap the pistol so as to not make it obvious. That evidence is not in dispute.
3. The reference from the Narrandera and District Pistol Club Committee states that optometrists usually "request the shooter to bring in a pistol to confirm the distance required and check the sharpness of focus". However, I note that the reference is unsigned. It contradicts the evidence from Sergeant Ryan and Sergeant Ryan was not questioned on that contradiction. In the circumstances I am unable to give more than minimal weight to that assertion from the Narrandera and District Pistol Club Committee.
4. Nevertheless, I am satisfied that the Applicant took the pistol to the optometrist without providing any notice that he intended to do so. Further, while it was disabled it was not secured in any way.
5. There is also conflict between the Applicant's evidence and that of Senior Constable Fletcher in regard to the impact on the receptionist. I agree with the Respondent that the Applicant is not in a position to give evidence as to how his actions affected the receptionist. However, in the absence of evidence from the receptionist I am unable to determine the extent of the impact of the Applicant's conduct. I accept that Senior Constable Fletcher was clearly of the view that the impact was significant.
6. It is reasonable to infer from the fact that Police were contacted in regard to the optometrist incident that the receptionist was affected by the manner in which the Applicant handled the pistol.
7. In my view, the fact that the Applicant had no intention to harm or offend the receptionist or anyone else does not alter the fact that his conduct has had a negative impact on the receptionist. The Applicant's conduct was clearly a danger to the receptionist in that regard. The fact that the receptionist was not physically harmed does not alter this impact. No member of the public should be placed in that position by the holder of a firearms licence. That is contrary to the principles and objects of the Act as set out above which refer to the responsible use of firearms. It also suggests that the Applicant does not possess the "requisite knowledge of the duties and responsibilities devolving upon him" as the holder of a firearms licence.
8. I agree with the Respondent that the fact that the Applicant considers that he was a victim of a set of unforeseen circumstances which played out in the optometrist incident demonstrates that he still fails to understand that his actions were not those of a responsible firearms owner.
9. The Applicant should have adopted a different approach to consulting the optometrist so as to avoid the negative impact on the receptionist. At the minimum, arrangements should have been made for the security of the pistol during the attendance at the optometrist. I agree with the Respondent that this would include: 1. warning the optometrist that he was going to bring the unloaded firearm to his appointment; 2. keeping the firearm appropriately secured at all times; 3. not revealing the firearm in the reception area of the optometrist, in front of members of the public; and/or 4. not bringing the firearm to his optometrist appointment.
10. In my view, it is of greater concern that the Applicant appears to have no insight into the effect of his conduct. That being the case, I cannot be confident that the Applicant would not contravene the Act again if he were granted a firearms licence. In my view, there is a risk to the safety of the public if the Applicant's licence is reinstated.
11. This may not always be the case and some comfort can be taken from the reference from the Narrandera and District Pistol Club Committee. However, I need to determine this matter on the material that is before me. In the circumstances, until such time as he can show that he has the requisite insight, I could not be satisfied that the Applicant is a fit and proper person to hold a firearms licence. Further, it is not in the public interest for the Applicant to do so.
12. It follows that the correct and preferable decision is to refuse to grant the licence. Accordingly, the decision under review should be 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: 03 December 2019