Burn v Commissioner of Police, NSW Police Force

(4) Except pursuant to order (5) below, all paragraphs marked "[NOT FOR PUBLICATION]" are not to be published pursuant to s 64(1)(c) of the NCAT Act or to be released to the Applicant.

(5) A copy of these reasons, without redaction shall be released to the Respondent.

Background

1. Ms Tania Burn (the Applicant) has held various firearms licences since 1 December 2009 and most recently was the holder of a category AB firearms licence (licence).
2. On 16 January 2020, the Applicant lodged a re-application for a category AB firearms licence (Application). It was conceded by the Commissioner of Police, NSW Police Force (the Respondent) in the course of these proceedings that the Applicant's licence remained in force pending the outcome of that Application.
3. On 3 August 2021, the Respondent sent a letter to the Applicant seeking that she undertake a mental health risk assessment within eight weeks.
4. On 14 August 2021, the Applicant was issued with a Notice of Suspension and her licence, and firearms were seized.
5. On 13 January 2022, a decision was made by a delegate of the Respondent to refuse the Application (the Decision).
6. On 7 February 2022, the Applicant sought internal review of the Decision. Prior to the Applicant being notified of the outcome of her internal review request and prior to the internal review having been taken to have been finalised under s 53(9) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), the Applicant lodged an application for administrative review of the Decision to this Tribunal on 11 February 2022 (application for review).
7. On 15 June 2022, Senior Member N. Isenberg, made certain confidentiality orders pursuant to s 59 of the ADR Act and s 49(2) and ss 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act): Burn v Commissioner of Police [2022] NSWCATAD 197.

Applicable legislation

1. Section 75(1)(a) of the Firearms Act 1996 (NSW) (the Act) confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act.
2. Section 55 of the ADR Act relevantly provides as follows: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note - The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). … (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.
3. The Respondent's written submissions indicated that to the extent required, the Respondent did not object to the Tribunal dealing with the application for review under s 55 of the ADR Act. Having regard to the circumstances of this case, I am satisfied that even though the Applicant duly applied for an internal review of the Decision, and the review was not finalised at the time that the application for review was lodged, that it is necessary for the Tribunal to deal with the application for review in order to protect the Applicant's interests. Accordingly, I am satisfied that the Tribunal has jurisdiction in relation to this application for review.

Applicable legislation

1. The general principles and objects of the Act are set out in s 3 as follows: 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, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) …
2. Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application or refuse any such application. … (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and … (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or … (c) the applicant's intemperate habits or being of unsound mind. … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
3. Section 12 of the Act provides that: (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. … (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant - (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Tribunal proceedings

1. The substantive matter was heard before me on 25 October 2023 and 21 November 2023. At the conclusion of the open hearing on 21 November 2023, a confidential hearing (Private Hearing) was held pursuant to s 49(2) of the NCAT Act.
2. In these reasons, in order to protect the privacy of certain third persons, I will refer to them either by their relationship to the Applicant or through the use of an initial for that person.
3. Various applications were made by the Applicant in these proceedings, both before and during the hearing of the substantive matter, including that Mr A appear as her agent and that the hearing be adjourned due to medical issues. These applications were considered by the Tribunal and reasons provided for the determinations that were made. Whilst the adjournment for medical reasons was not granted by the Tribunal, the Applicant was advised that she could have a break at any time if needed during the proceedings.

Applicant's material

1. The Applicant relied on a bundle of documents filed on 18 October 2023 (exhibit A1), a compact disk marked "11.55 pm - 12.22 am" containing footage of the seizure of the Applicant's licence and firearms by police on 13 and 14 August 2021 that was filmed by Mr A on his mobile telephone (exhibit A2), a bundle of material filed on 17 May 2022 (exhibit A3) and material from Professor Bruce Brew, Neurologist filed on 9 November 2023 (exhibit A4).
2. At the conclusion of the first day of the hearing, orders, including directions, were made by the Tribunal, including that the Applicant give to the Tribunal and the Respondent a written statement from Mr A relating to issues arising from the evidence tendered by the Respondent in the proceedings. The Respondent was provided with an opportunity to file any further evidence in reply. The parties were advised that the evidence of Mr A was to be by way of a written statement unless he was required for cross-examination by the Respondent.
3. A statutory declaration with attachments from Mr A dated 2 November 2023 was filed with the Tribunal on 2 November 2023 and the Respondent subsequently indicated that Mr A was not required for cross-examination. Having regard to the guiding principle for the NCAT Act and the procedural rules set out in s 36 of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings, together with s 38 of the NCAT Act, Mr A's statutory declaration (exhibit A4) was accepted into evidence on the second day of the hearing without Mr A giving oral evidence.
4. The Applicant gave oral evidence at the hearing and was cross-examined by Mr Roberts, the legal representative appearing for the Respondent. The Tribunal viewed the footage contained on the compact disk (exhibit A2) following the hearing.
5. The documentary material relied upon by the Applicant included written submissions. I have given appropriate weight to both the evidence and to the submissions in my consideration of this matter.

Respondent's material

1. The Respondent relied on the s 58 documents, with the exception of pages 55 to 57 (inclusive) (exhibit R1) and a bundle of additional evidence (exhibit R2). The Respondent also handed up a USB for the assistance of the Tribunal (MFI B) that consisted of a copy of the same footage contained on the compact disk referred to above (exhibit A2).

Submissions

1. The Applicant relied on the submissions contained in the documentary material referred to above and the Respondent relied upon the Respondent's outline of submissions filed on 15 September 2023 (written submissions). Oral submissions were made by both parties at the conclusion of the public hearing, which included addressing issues that had been raised by the Tribunal, and on this basis no further written submissions were required from the parties.

Private Hearing

1. At the conclusion of the public hearing, a Private Hearing was held pursuant to s 49(2) of the NCAT Act. The orders made by Senior Member N. Isenberg on 15 June 2022 continued in force.
2. [NOT FOR PUBLICATION]

Role of the Tribunal

1. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. 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 then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment.
2. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review 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) 235 CLR 286; [2008] HCA 31.
3. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] (Cusumano). Accordingly, the objects and purposes of the Act are relevant when exercising a discretion under the Act.

Issues

1. At the conclusion of the hearing, the Applicant was aged 61. It was not in dispute that she had held various firearms licences between 1 December 2009 and 14 August 2021 and that she has not been charged with, or convicted of, any contravention of the Act or associated regulations, nor has she come to the attention of police due to any reported misuse of firearms. It was also not in dispute that the Applicant had no criminal record. I am satisfied that this was the case at the time of the hearing. Whilst the Applicant did have a limited traffic history, this was not relied upon by the Respondent in relation to her application for review and I give no further consideration to it.
2. It was the Respondent's position that the Application should be refused, and that the Decision is correct and preferable because: 1. The Applicant is not a fit and proper person to hold a firearms licence as a result of the Applicant's behaviour towards members of the public and police; 2. The Respondent has, and the Tribunal should have, reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of: 1. The Applicant's way of living or domestic circumstances, particularly given the Applicant's associations with Mr A and involvement in domestic incidents at her residence involving her neighbour; and 2. The Applicant's intemperate habits or being of unsound mind; and 1. the Tribunal should be satisfied that it is not in the public interest for the Applicant to hold a firearms licence.
3. In support of this position, the Respondent relied on the Applicant's involvement in various incidents since 2016 and which are referred to below.

Fit and proper Person

1. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
2. The issue of an applicant's fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, at [37].
3. In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22].
4. The question of a person's fitness to hold a licence is 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 the High Court decision 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.
5. 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.
6. 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.
7. 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 person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. 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.

Public Interest

1. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety 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. The concept does include 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] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to "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 Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
3. The issue of public interest allows for matters going beyond the 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]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
4. In a familiar passage, 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130].
5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 (AML) that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" at [8].
6. Other cases have pointed out that 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]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery JM when considering the question of public safety, stated that, "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".

Applicant's association with Mr A

1. The Respondent relied on the Applicant's association with Mr A, including the following incidents in which he was said to be involved: 1. An incident at Ashfield Civic Centre on 11 December 2016 (2016 Incident); 2. An incident at a park on 12 August 2017 (2017 Incident); and 3. Interactions with police on 13 and 14 August 2021.
2. The details relating to these incidents are set out in records contained within the Respondent's documentary material obtained from the Respondent's Computerised Operational Police System (COPS) database (part exhibit R1). Further evidence in relation to these matters was adduced by the Applicant.
3. [NOT FOR PUBLICATION]
4. I am satisfied from the statutory declaration of Mr A that he and the Applicant have known each other for some 40 years. Having regard to all of the available evidence, I am satisfied that the Applicant was present at the 2016 Incident, the 2017 Incident, as well as being present at the events on the night of 13 August 2021 and the morning of 14 August relating to the seizure of the Applicant's firearms and licence by police. I am satisfied from the Applicant's material that she lived with Mr A from 2019 to 2021 and that she and Mr A were living together on 13 and 14 August 2021. I accept from the Applicant's evidence before the Tribunal, that Mr A and the Applicant continue to associate with each other and as she has a "lot of stuff" stored at Mr A's home, she sees him every week. I am however satisfied that she and Mr A no longer reside together and that they have not done so since approximately August 2022.
5. On the basis that the Applicant and Mr A no longer reside at the same premises, I give minimal weight to the association between Mr A and the Applicant in my consideration of this application for review.
6. [NOT FOR PUBLICATION]

Incidents with neighbours

1. The Respondent relied on an Interim Apprehended Violence Order (IAVO) issued against the Applicant's neighbour, Mr B, on 22 December 2021 for the protection of the Applicant. Having regard to the evidence from both the Applicant and the Respondent, I am satisfied that on 21 March 2022, the IAVO was replaced with a final Apprehended Violence Order (AVO) which expired on 8 March 2023. Having regard to the material before the Tribunal, I am satisfied that police were called on a number of occasions to the premises at which the Applicant and Mr A previously resided in relation to issues arising from the IAVO and the AVO.
2. Whilst I have had regard to all of this material, in circumstances where: the Applicant was the person in need of protection from Mr B; the AVO had expired prior to the hearing of this matter; neither the Applicant nor Mr B were living at their former addresses at the time of the hearing; there is no evidence of any ongoing contact between them; and there is no evidence to suggest that the Applicant is still in need of protection from Mr B, I give no weight to the previous IAVO or the previous AVO in my consideration of this matter.
3. A further COPS report was relied upon by the Respondent in relation to an AVO issued against another person, Ms C, on 17 June 2021 for the protection of both the Applicant and Mr A. This AVO expired on 16 June 2023. Similarly, whilst I am satisfied that this AVO was issued, in circumstances where: this AVO had expired prior to the hearing of this matter; there is no evidence of any ongoing contact between Ms C and the Applicant; and there is no evidence to suggest that the Applicant is still in need of protection from Ms C; I give no weight to this AVO in my consideration of the application for review.

Other incidents relied upon relating to the Applicant

Incident involving male driver - 29 May 2018

1. The Respondent relied on a COPS report in relation to an incident on 29 May 2018 (part exhibit R1) in which the Applicant reported to police that she was camping when approached by a man who questioned her and then asked in a derogatory manner for "sex and fun". The male was reported as being very aggressive and it was noted that the Applicant was concerned that he may return. Police attended and spoke with the Applicant. It was recorded that the Applicant told the officer that the man did not threaten her and did not get out of the car and that she just wanted the police to speak to him about the matter. She was said to have insisted that police provide her with an event number immediately.
2. It was then recorded that the Applicant advised police in great detail about numerous other incidents at various locations where she had been verbally abused and been involved in arguments. It was recorded that although all these incidents were at different times and locations, the Applicant believed that she was being targeted. In the absence of any links between the matters, police formed the opinion that the Applicant was "paranoid".
3. Police followed up with the male driver in relation to the incident and gave him a warning in relation to the incident. The man was reported as becoming quite abusive before the call was terminated. Police then spoke with the Applicant on 30 May 2018 and provided her with an event number. The Applicant reported that one of her dogs had developed diarrhoea and that she believed that the male driver had thrown rotten meat out of his vehicle in order to make her dog sick. Police made a record of this report.
4. In the Applicant's material filed on 17 May 2022, the Applicant indicated that this incident is particularly sickening regarding the "warped" attitude of the attending police officer. The Applicant referred to a similar incident that she had referred to in her discussion with the officer on 29 May 2017, involving a male at another campsite in 2017, following which the Applicant had made a report to police who did nothing. The Applicant referred to the officer's comments in the COPS report that she was "paranoid" and stated that she had rung for help in what could have turned into a potential rape. The Applicant indicated that she was homeless at the time and had been "targeted by backward elements." She asked if the officer had the medical qualifications to make the claim that she was paranoid, in circumstances where the only purpose was to undermine the victim.
5. The Applicant went on to state that the officer's attitude revealed "how indifferent Police officers are toward vulnerable people so far detached with their middle class lifestyles are thoroughly prejudiced towards the working class. The officer just reflects the Police state of mind across the board of contempt toward the poor."
6. In her evidence, the Applicant made reference to the possibility of a "set-up" by the police in relation to the incident and in cross-examination she indicated that she was starting to "really wonder" about the NSW police and their failure to follow up on this incident.

Incident involving the Applicant's former veterinarian - 16 July 2018

1. The Respondent relied on a COPS report dated 16 July 2018 (part exhibit R1) relating to an incident on that day involving the Applicant and a veterinarian (the Vet) who had previously treated the Applicant's dog (the Vet incident). The COPS report indicates that the Vet was in a park walking her own dog when the Applicant's dog approached her, followed by the Applicant. It is recorded that the Applicant stated "I know you, you are the person who operated on my dog. You caused him to go blind." A short conversation between the Applicant and the Vet then took place and it was reported that the Applicant then started to yell and swear at the Vet.
2. Later that day, the Vet reported the matter to police and wanted police to speak to the Applicant about the incident and for a record to be made. When police telephoned the Applicant, she is recorded as stating that she was not abusing the Vet but simply stating how she felt about the incident. It was then recorded that the Applicant began to raise her voice and talk over police. She was then warned that if she continued her interactions with the Vet, she could be charged with intimidation. A record was made of the Vet incident, but no other action taken.
3. In the Applicant's material filed on 18 October 2023, the Applicant indicated that there was "a sharp exchange of words" and that she was defending her blind and crippled dog against a potential dog attack. She said that she was accused by police of intimidation for speaking to the Vet about the botched job the surgery had done in relation to her dog. She stated that "criticism is intimidation in the eyes of police" and noted that the matter had been verified with no further investigation.
4. In her oral evidence, the Applicant stated that the Vet's dog had "barrelled" into her dog. She also stated that the person in the park was not a veterinarian, but a veterinarian's assistant and that the surgery had botched the operation on her dog and then just "dropped" the Applicant and her dog. She referred to the very painful words in the park, and that she had been protecting her blind and vulnerable dog against the Vet's unleashed dog and had told her to keep the dog away. She said that if the Vet could not handle the "criticism", then it was not the Applicant's problem. She acknowledged that she had been "very sharp" with the Vet but that she did not consider that she was yelling, and that she did not swear at her.
5. She said that when she was later called by police, they talked over her, and that all she had been doing was protecting her dog in a park. The Applicant said that it was "over the top" and that it was a "dirty road" that police were walking on. The Applicant denied that she was aggressive to the Vet.
6. [NOT FOR PUBLICATION]

Damage to the Applicant's vehicle - 22 September 2018

1. The Respondent relied on a COPS report dated 22 September 2018 (part exhibit R1) relating to report by the Applicant about an incident the previous day in which the cap to her van tyre had been removed and the tyre let down. It was reported by the Applicant that she was homeless and living in her van. She stated that she had taken her dogs to the park and that one had gone missing. The Applicant believed that the suspects had recently been approached by the police and that the malicious damage and her dog going missing were caused by this group "getting revenge on her" as they may think that she had called the police about them.
2. The Applicant stated in her documentary evidence (part exhibit A2) that she was the victim in this matter and that "youths" who had been pulled up by police in relation to drug possession had seen her vehicle number plate at the time. She stated that the youths had let her tyre down and stolen her dog whilst she was walking both dogs. The Applicant believed that a woman was seen walking the Applicant's dog across a busy road before dumping the dog. Another woman then grabbed the dog and let the Applicant know that she had taken the dog to a safe place. The Applicant stated that police had video evidence of her tyres being let down but did nothing as the relevant police officer rated it low on his watch.

Incident with mechanics - 21 April 2021

1. The Respondent relied on a COPS report dated 21 April 2021 (part exhibit R1) relating to an incident at a mechanic's service centre. It was recorded that the Applicant was "being extremely abusive" and that she was refusing to leave. The Applicant had taken her vehicle to the service centre as motor oil had accidentally been poured into its brake lines. The Applicant was reported as being argumentative with mechanics regarding the movement of her vehicle believing that while the mechanics were testing it, they were causing further damage.
2. The Applicant then left whilst the mechanics worked on her vehicle and returned sometime later. After she returned and paid for the service, the Applicant drove around the corner and found that the oil reservoir was full of thick oil. She then went back into the service centre and the mechanics advised that due to the highly thick and viscous oil, it had not been possible to remove it all, but that they had carried out as much work as possible, including cleaning the filters and flushing the lines. The Applicant then began verbally insulting the staff members, making racist remarks to staff of Indian descent, swearing and refusing to leave. It was recorded that staff offered her a refund to encourage her to leave but she still refused.
3. Police attended and it was recorded that they found the Applicant to be extremely aggressive and that she repeatedly talked over them. Police obtained the Applicant's money back and asked her to leave, and she refused to do so. Police then gave her a move on direction. She was advised that if she did not leave, she would be forcibly removed. Police then escorted the Applicant out of the service centre, and she got into her vehicle and left.
4. In the bundle of material relied upon by the Applicant (exhibit A3), the Applicant stated that upon arrival she told one of the workers not to drive the car into the bay but to push it and she was ignored three times. She stated that all they had to do was to "suck" the oil out of the reservoir, and instead they pumped it through the brake lines. She said that after she left and discovered that the reservoir was full of thick oil, she went back in and "verbally abused them in the workshop. In hindsight this was not acceptable and regret having a yelling match and being frog marched out by the police."
5. She then went on to state as follows (sic): "I will not be branded as a racist. I am sick and tired of this term being thrown around. I am not going to be told by a jumped up middle class upwardly mobile Indian entrepreneur that what the mechanics did was exceptable in anyway on any level. … As for the slander of racism because I referred to the culturel prejudice that middle class Indians have toward the poor and toilers of India particularly the class bias towards the 'untouchables' and prejudiced caste system. I reminded him I will not be judged by the same cultural prejudices because I'm POOR. On that basis he screamed "RACIST"."
6. In her evidence, the Applicant acknowledged repeatedly swearing at the mechanics and to feeling stressed and "raging". She said that she regretted being frogmarched out and calling the mechanics a bunch of "cunts". In cross-examination before the Tribunal, the Applicant acknowledged that she was very upset at the time and that she had been abusive. She stated that it was during "lockdown" and that money was very tight at the time and that she knew she would up for hundreds of dollars if the work was not carried out properly. The Applicant conceded that she was very loud and that she had shouted at them. She said that she was accused of being racist but had not made any racist comments and had told the manager not to treat her like an "untouchable". She stated that the incident had cost her a further $550 to repair the vehicle.
7. The Applicant agreed that police had attended and said that she was not aggressive to them and made it clear that she just wanted the vehicle to be repaired. The Applicant denied talking over the police and said that the police talked over her and effectively took the "entrepreneur's" side. She stated that there was no warning before the police grabbed her and walked her out.

Seizure of Applicant's firearms licence and firearms -14 August 2021

1. The Respondent relied on a COPS report dated 14 August 2021 (part exhibit R1). The report indicated that police had earlier attended the Applicant's residence and returned at 12 am on 14 August 2021 to serve the Notice of Suspension on the Applicant and seize her three firearms. The grounds for the seizure were said to include a warning that the Applicant had a possible mental illness and that she resided with Mr A. It was recorded that due to the number of times police had attended the location, it was deemed to not be in the public interest for the firearms to remain at the location. Police explained the situation to the Applicant and Mr A, but they were not co-operative, and Mr A began to record police on his mobile phone.
2. The Applicant relied on this footage (exhibit A2) and also provided a transcript of the various conversations captured in the footage (part exhibit A1). The accuracy of the transcript was not challenged by the Respondent, and I have quoted from it when referring to conversations in the footage below. It was not in dispute that the Applicant was given the Notice of Suspension and that she handed her licence and firearms to police.
3. It is apparent from the footage that police attended the Applicant's residence just before midnight on 13 August 2021 to suspend the Applicant's firearms licence and Senior Constable Woods (the Officer) indicated that police would be providing the Applicant with the paperwork. The Applicant indicated that police required a warrant to do so and that she was not suspended, to which the Officer indicated that "you are now", and that the suspension was on the basis of all of the incidents happening "here". In the course of the conversation with the Officer, the Applicant stated that she had not been arrested or charged and also stated that "I'm targeted by you". The Applicant indicated that if there were no charges, the police had no right to seize her firearms and after again being told that her licence was being suspended she requested an event number. The Applicant agreed with Mr A that police were acting outside their authority.
4. The Applicant provided police with her licence, and shortly afterwards she was served with the Suspension Notice and handed her firearms to police. The Applicant can be heard saying "You better not destroy them." Later, she can be heard saying with a raised voice, "I want some answers on this," at which time Mr A said "shoosh, just let it go Tania". The Applicant stated that she had no ammunition and when police asked to see her safe storage, she said "No." The Applicant then said "No, you've got the rifles, you've seized them. That's it".
5. Following further conversation, the Applicant then said to the Officer in a raised voice "You cowards. You can't even answer questions." After moving outside the premises, the Officer asked the Applicant for her complete firearms, namely for the bolts. The Applicant moved away and on her return said to police "Yeah and my fingerprints are all over them, so you better you better not fucken well try and set me up." Following discussion with the Officer about the next steps in the process, the Applicant said, "it's up for review for the last 18 months you bastards have kept it." The Applicant then referred to the Officer as a "maggot".
6. The documentary material filed by the Applicant (exhibit A1) included a copy of her request for internal review of the Decision dated 7 February 2021. That letter refers to an incident with another officer at Campsie Police Station relating to Covid breaches that had been reported by the Applicant and indicated that she had been given the "run around" by police. The Applicant also referred to reporting a further Covid breach to police. The Applicant referred to police having acted outside the law and the authority of the Firearms Registry when seizing her rifles "on a defective suspension notice" with no warrant.
7. The Applicant indicated in that material that she did not intend to store her firearms at her home but would instead move them immediately. She indicated that she two complaints were "separate but part of this conspiracy to fit me up as an unstable unfit person" by the two officers. The Applicant indicated that she believed that the Officer has acted on "false information" that her licence was suspended, when in fact it was pending. The Applicant reiterated her view that the Officer had no warrant and no proof of any threats and had acted outside the authority of the Firearms Registry. She said that she had acted reasonably in giving her rifles and bolts and that she "did not have to comply" and that the Officer inferred that she was "unfit" because she did "not recognise his defective suspension notice and lack of warrant."
8. In cross-examination before the Tribunal, the Applicant again reiterated her view that the police were required to have a warrant to seize her firearms and that they had no right to seize her firearms whilst her licence was pending. She gave evidence of her view that the police had acted unlawfully. The Applicant agreed that she had been argumentative with police during the service of the Notice of Suspension and the seizure of her firearms. She acknowledged that it was incumbent on a licence holder to co-operate with police and she said that she was co-operative and did everything that she could to co-operate with police. The Applicant also agreed that it was important for a licence holder to understand the basics of the firearms legislation. When the Applicant was asked if she understood that police can seize firearms without a warrant, she responded that her licence was not suspended.
9. Mr Roberts referred to s 3(1)(a) of the Act, namely that one of the underlying principles of the Act is to confirm firearms possession and use as being a privilege that is conditional on the overriding need to ensure public safety. The Applicant responded that in NSW, this was not a privilege but a right and that the right had to be earned by undertaking a firearms course. The Applicant said that there was no "moral privilege", and that no person was better than another. When asked if she had been arguing with the police on 14 August 2021, the Applicant said that there was a difference between arguing and the law. She said that the police had been acting illegally, as her licence was pending, and that she was defending her right as a citizen to oppose an illegal act. When asked about the obligation to show her safe storage to police, she said that usually you would get informed and that police "don't just lob up." She also indicated that she would not trust the NSW Police "as far as I can spit." The Applicant confirmed that she had called the Officer a "maggot".

Further COPS reports

1. The Respondent relied on a COPS report in which the Applicant attended Hurstville Police Station on 26 July 2022 and reported an incident to an Officer Tanaka that had occurred earlier that day. The Applicant reported that as she was driving, the bolts attaching the rear nearside wheel to the axle had come loose and the wheel had fallen off. None of the bolts on the other wheels were loose. The Applicant advised police that she suspected that the incident had occurred as the result of foul play by one of her neighbours. The Applicant indicated that she there may be CCTV footage depicting the boots being loosened. The COPS report indicates that police followed up to obtain the footage but were not able to obtain it as it was only held for a limited time. There is a notation "No Further investigation - 08/01/2023" with the reason "All reasonable enquiries compl".
2. In the Applicant's documentary evidence (exhibit A1), the Applicant indicated that the officer did not contact the owner of the CCTV footage until a month later, and that not surprisingly, the footage was not available two and a half months later. The Applicant noted "what a cover up".
3. The Respondent relied on a further COPS report indicating that on 23 August 2023, police were conducting patrols and observed the Applicant sitting in the rear of her van writing in a notepad. Police approached and attempted to render assistance to the Applicant who ignored police and slammed the van door. It was noted that it looked as though the Applicant was living in the rear of her van and an Event was created for future possible missing persons.
4. In the Applicant's documentary material, the Applicant said that this was police harassment and denied having cooking items stored in her van. She indicated that the officer had asked her if she was all right, to which she responded "yes" and that she had then closed her door.

Homelessness

1. It was not in dispute that as at the dates of the hearing, the Applicant no longer resided at her previous residence. The Applicant gave evidence that she was homeless and lived in her van. She indicated that if granted her firearms licence, she would either pay for storage for her firearms or alternatively they would be sold. She indicated that when she had housing, she would take up recreational hunting again and buy new rifles at that time.

Mental health

1. As referred to above, the Applicant lodged her Application on 16 January 2020 and her previous licence remained in force pending the outcome of that Application. On 3 August 2021, the Respondent requested that the Applicant undertake a mental health risk assessment within eight weeks. On 14 August 2021, the Applicant was issued with a Notice of Suspension in relation to her previous licence and her licence and firearms were seized by police. No mental health risk assessment was received from the Applicant and the Decision to refuse the Applicant's licence was made on 13 January 2022.
2. The Applicant did not adduce a mental health risk assessment before the Tribunal but relied on material from Professor Brew, a neurologist. This material consisted of an eight- page document. The document was not signed or dated and appears on its face to be a document associated with a request by the Applicant for housing assistance. It appears from the document that the handwriting that appears in the document is that of Professor Brew and his field of expertise is described as "neurology", and sets out medical conditions, including chronic neck and back pain resulting in the Applicant having difficulty walking greater than 100 metres.
3. Question 24 states (sic), "Do psychological issues affect the YesGo to 28. Client's ability to …cope?" and within that question, the "No" box appears to have been ticked.
4. The Applicant was adamant in both her written and oral evidence that she does not have, and has never had, a mental illness of any kind.

Further matters raised by the Applicant

1. The Applicant stated in her documentary material filed on 18 October 2023 that she believed that a police officer had an "axe to grind" against Mr A which was actioned through the Applicant. Having set out the basis for this view, the Applicant stated that from that time on, police had set out to build a "profile" on her, which was difficult as she had no mental health issues and no criminal record, "only what they decide to fabricate in their Cop Intel Reports…twisted to meet police narratives particularly to flesh out the accusation of a "risk to public safety" required to prove their case in the hearing".
2. The Applicant went on to say that she has demonstrated that the police say, "whatever they want and lie organically for their own outcome" and that she was "set up by Campsie Police." The Applicant indicated that she saw the Decision as a gross injustice to a private citizen who has met all legal requirements for a licence. She requested that the guns that were "stolen" by the Officer be returned to her, the refusal overturned, and her licence renewed.
3. In her oral submissions, the Applicant absolutely refuted any aggression by her and reiterated that she had no criminal record, no mental illness and did not live with Mr A. She submitted that she was not crazy, did not believe in conspiracy theories and that anti-terror laws were being used against her. The Applicant submitted that she was a fit and proper person to hold a licence and that she would stand her ground if she believed that she was correct. The Applicant said that she believed in the law and that she acted correctly in dealing with the Officer on 13 and 14 August 2021 and that the Officer was outside the law.

Various incidents

1. I am satisfied that the Applicant was homeless for a period of time in 2018 and living in her van, and that she again was homeless and living in her van at the time of the hearing. I accept that the Applicant was the victim in a number of incidents, including the incident on 29 May 2018 involving a male driver, which understandably resulted in the Applicant being concerned and reporting the incidents to police. On the material before the Tribunal, I am satisfied that the Applicant's complaint on 29 May 2018 was received by police, a COPS record was made, and the matter investigated. On this basis, and in the absence of any supporting evidence adduced by the Applicant, I do not accept the Applicant's contention that she was "set-up" by police or that they failed to follow up in relation to the incident.
2. In relation to the Vet incident on 16 July 2018, I am satisfied that an incident occurred between the Applicant and a woman associated with the veterinary surgery that had previously operated on the Applicant's dog. I am satisfied from the Applicant's evidence, that the Applicant was critical of that woman and the veterinary surgery as well as the other woman's dog, and that she was "very sharp" with her. I am satisfied that the Applicant's conduct was sufficient to cause the woman to be worried by the Applicant's actions and for her to subsequently report the matter to police and ask them to speak to the Applicant.
3. [NOT FOR PUBLICATION]
4. I am satisfied that the Applicant contacted police on 22 September 2018 in relation to an incident involving her dog, as well as to her van tyre being let down and indicated that both matters were the result of youths getting revenge on her. On the limited evidence before the Tribunal, I am not able to be satisfied that there were any links between these incidents or that police had video evidence in relation to the matter.
5. Having regard to all the evidence, including that of the Applicant, I am satisfied that the COPS report dated 21 April 2021 provides an accurate account of the incident involving the Applicant at the mechanic's service centre on that day. I am satisfied from the Applicant's evidence that she verbally abused and swore the mechanics in the service centre, that there was a "yelling match" and that she was very loud and shouted at them. Whilst I am not able be satisfied as to the exact words spoken by the Applicant to the mechanics, it is evident from the Applicant's evidence that she referred to them as a "bunch of cunts" and that reference was made by her to their Indian background. It is evident that the Applicant's conduct on that day caused them sufficient concern for police to be called to attend. I am satisfied that when police attended, the Applicant had her money returned to her and refused to comply with the request by police to leave. I am satisfied that she was then given a move on direction by police and was then escorted by them from the premises.
6. Whilst it appears from the Applicant's evidence that she has some insight into her conduct in relation to this incident and acknowledged that it was not acceptable, the Applicant's regret appeared to have been largely focused on her being "frog marched" out by police.
7. Whilst I accept that a report was made to police by the Applicant on 26 July 2022 in relation to a wheel coming off her vehicle, and that the CCTV footage was not obtained by police, I am not satisfied on the evidence before the Tribunal that this was a cover up by police.
8. I am satisfied that on 23 August 2023 the Applicant was homeless and living in her van. I accept that police approached the van to render assistance and that the Applicant closed the van door as she was all right and did not require assistance. Other than establishing that the Applicant was homeless at this time, I given no further weight to this incident.

Seizure of Applicant's firearms licence and firearms

1. The Applicant placed great reliance on the mobile phone footage taken on 13 and 14 August 2021 to show her demeanour and that of Mr A "under siege". She submitted that it was important that her conduct be viewed by the Tribunal, especially where it was put forward by the Respondent as "irrational".
2. It is clear that this application for review is limited to the Decision to refuse the Applicant's licence and that it does not extend to the decision by the Respondent to suspend the Applicant's licence on 14 August 2021. As previously referred to, it was conceded by the Respondent that the Applicant's existing licence remained in force pending the outcome of that Application: Clause 19 of the Firearms Regulation 2017 (NSW). The Notice of Suspension (part exhibit R1) makes it clear that the reason for the suspension by the Respondent on 14 August 2021 was "Not in the public interest" and it does not make any reference to the licence having expired.
3. Whilst the issue of whether a warrant is required to issue a Notice of Suspension and seize firearms is not directly relevant to my determination in relation to the Decision, it is of relevance to my consideration of the Applicant's conduct as shown in the mobile phone footage. I am satisfied that the firearms statutory scheme does not require a warrant to be obtained by police to serve a Notice of Suspension, and that once a licence has been suspended, a police officer is authorised under the Act to seize the licence holder's firearms and the licence itself. The Act provides that such powers can be exercised by any police officer, and not just officers from the Firearms Registry. It follows that I am not satisfied that the attending police acted unlawfully or outside of their authority when they attended the Applicant's premises to serve the Notice of Suspension and seized the Applicant's firearms and licence.
4. The Tribunal in DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD said at [57], that "[t]he level of co-operation and frankness demonstrated by a licensee in dealing with the regulator is indicative of the licensee's character" and at [58], "[a] licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator."
5. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234, the Appeal Panel of the NSW Civil and Administrative Tribunal said at [25] that "…it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant." Further, "the case law indicates that when considering future risk, the Tribunal must consider the past conduct of the applicant as a significant guide": Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
6. Whilst I accept that the Applicant did ultimately provide police with her licence, firearms and bolts on 14 August 2021, I am satisfied from the evidence before the Tribunal, particularly from the footage relied on by the Applicant, that the Applicant was argumentative with police, spoke over them and raised her voice on occasion, whilst they were at the premises. I am satisfied that as part of her interactions with police on 14 August 2021, the Applicant said to the Officer in relation to her firearms, "my fingerprints are all over them, so you better not fucken well try to and set me up". I am satisfied that in relation to her Application, she said to the Officer that "you bastards have kept it," referred to the Officer as a "maggot" and to the attending police as "cowards". When police asked to see the Applicant's safe storage for her firearms, she said "no."
7. In light of these findings, I am satisfied that the Applicant's level of co-operation and frankness with police on 14 August 2021 was very low. In my view, this suggests that there is real cause to be concerned that the Applicant, if granted a licence, is likely to demonstrate these same characteristics in any future dealings with the regulator, namely the Respondent in these proceedings. This is particularly so when the Applicant gave evidence that she continues to believe that she acted "correctly" on 14 August 2021, and that in suspending her licence, and seizing her firearms, the police acted outside the law and had "stolen" her firearms. In my view, when coupled with the Applicant's further evidence that she would stand her ground if she believed that she was correct, this leads to real and significant concerns about the risk of the Applicant holding a firearms licence and possessing firearms.
8. This view is strengthened by the Applicant's stated lack of trust in the police not just in relation to this incident, but to a number of others referred to above. The Applicant has made reference to the "warped" attitude of the officer investigating the incident relating to the male driver in 2018, to the "dirty road" that police were walking on following the Vet Incident, and to her beliefs that police were targeting her and that there was a "conspiracy" to fit her up, and as a result she "does not trust police as far as [she] can spit". The Applicant referred to a "cover up" by police and to them lying "organically for their own outcome," with no evidence being adduced to support such views.
9. I also have regard to the incidents referred to above, including the Vet incident and the incident with the mechanics. Whilst the incidents did not lead to any further police action against the Applicant, I am satisfied that the incidents resulted in members of the public calling police in relation to their concerns about the Applicant's aggressive behaviour. The Applicant acknowledged in relation to the Vet incident that she had been very sharp and that in the incident involving the mechanics, that she had been shouting and swearing and had to be escorted by police from the service centre. I am satisfied that there is a level of consistency in the police reports of the Applicant speaking over them and this is also evident in the mobile phone footage from 14 August 2021.
10. In light of all of these matters, I am not able to be satisfied that there would be virtually no risk if the Applicant was to be issued with a firearms licence and to possess firearms.
11. The Applicant said in her evidence that in her view, firearms possession in NSW is not a privilege but a right and that right had to be earned by undertaking a firearms course. She also said that there is no "moral privilege", and that no person was better than another. I do not accept this to be the case in relation to the possession and use of firearms in NSW.
12. Section 3(1)(a) of the Act provides that it is an underlying principle of the Act to "confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety" and this principle has been applied by the Tribunal on many occasions: see Cusumano at [24]. It is clear from the provisions in the Act and Regulation that the completion of a firearms course is not in itself sufficient for an applicant to be granted a firearms licence, and that the Respondent, and by extension this Tribunal, has a discretion whether or not to issue a licence and in certain circumstances, the Act provides that a licence must not be issued at all.

Conclusion

1. In the circumstances of this matter, I am not able to be satisfied that there would be virtually no risk to public safety if the Applicant was to be granted a licence to possess and use firearms. Accordingly, having regard to the entirety of the evidence before the Tribunal, I am not satisfied in accordance with s 11(3)(a) of the Act that the Applicant is a fit and proper person and can be trusted to have firearms without danger to public safety or to the peace.
2. Whilst I have had regard to the character references adduced by the Applicant, including from Mr A, these do not affect my findings in relation to the Applicant's fitness under s 11(3)(a) of the Act.
3. In these circumstances, the Act provides that the Respondent, and by extension, this Tribunal, must not issue a licence to the Applicant. It follows that the correct and preferable decision in this matter is to refuse the Application and to affirm the Decision.
4. Having made this finding, it is not necessary for me to consider the further grounds relied upon by the Respondent. It is noted however, that in addition to the matters referred to above and in circumstances where the Applicant was homeless at the time of the hearing, I would have been satisfied that the issue of a licence to the Applicant would be contrary to the public interest.

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: 28 February 2025