Campbell v Commissioner of Police, NSW Police Force; Franey v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-07-01

64(1)(d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing in the proceeding on 1 July 2024 and the contents of all paragraphs in these Reasons marked '[NOT FOR PUBLICATION]' are not to be published or released to the Applicants, their legal representatives, or the public.

REASONS FOR DECISION

The Applicants, partners Tracy Campbell and Daniel Franey, each applied for a firearms licence but their applications were refused. The refusal decisions were affirmed on internal review. The Applicants now seek review by this Tribunal. Both matters were heard together by consent.

Relevant legislation

Evidence

Each Applicant provided a bundle of documents, including a statement and statutory declaration and membership information from the Sporting Shooters Association and a letter of authority to shoot at the premises of Joseph Adrian Lloyd dated 5 April 2024. They gave evidence and were cross-examined.
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act). The Respondent relied on the evidence of Sergeant Hayden Burden who provided a statement dated 19 June 2024, gave evidence and was cross examined.
The Respondent also relied on evidence produced during a confidential hearing. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

On what basis was the Applicants' licence applications refused?

On 24 August 2023, the Applicants both applied for Category AB firearms licences for the genuine reason of recreational hunting/vermin control. The stated genuine reason for obtaining a firearms licence was the humane destruction of larger vermin/appropriate actuation, calibre and for target animal (vermin).
There was no contention that either of the Applicants were not themselves fit and proper persons to hold a firearms licence, but rather, the refusal decisions were primarily based on risks to public safety arising from the Applicants' relationship with Edward Campbell (Edward) who is Ms Campbell's son and Mr Franey's stepson: s 11(4)(a) of the Act. Edward, who is presently aged 28 has been convicted of various offences, including in relation to domestic violence and, significantly, firearms.
On 23 June 2020, at a time he was living with his mother, Edward was charged with: 1. driving with high range PCA - 1st offence, for which he received a fine, an 18-month community correction order (CCO), 7-months disqualification of his driver's licence and 2 years of participation in the alcohol interlock program; and 2. custody of a knife in a public place - 1st offence, for which he received a fine.
On 14 June 2023, Edward was charged with the following firearms offences: 1. possessing ammunition without holding a licence; 2. possessing a loaded firearm in a non-public place so as to endanger the life of another person; 3. possessing a shortened firearm without authority; 4. possessing an unregistered firearm; 5. not keeping a firearm safely - prohibited firearm.
On the same date, he was also charged with: 1. being armed with intend to commit an indictable offence; 2. two counts of common assault (domestic violence related); and 3. attempting to stalk or intimidate with intent to cause fear of physical harm (domestic violence).
Edward was subsequently convicted of all charges, for which he received: 1. an intensive correction order for an aggregate term of 20 months from 23 November 2023 to 22 July 2025; 2. referral to drug and alcohol counselling; and 3. CCOs (16 months in respect of the common assault charges and 12 months in respect of the attempt to stalk or intimidate charge) which conclude on 22 March 2025.
Mr Franey wrote that Edward was not living with them when he was arrested on 14 June 2023. Ms Campbell said that Edward had moved back to the town when he first got into trouble. Whilst awaiting the hearing of the charges, Edward was subject to bail conditions which required him to reside with the Applicants from 21 July 2023 to 23 November 2023. They had, as parents, been prepared to have him at their home to provide a steadying influence; they had "stood by him".
Once the bail term had finished Edward left their home and moved into his own place on the other side of town. Ms Campbell said she had not seen him since. He had last attended the home about 4 months ago and Mr Franey had let him in to collect the remainder of his possessions, as he no longer had a key.
On 9 February 2024, Edward was again charged, and these charges are yet to be heard: 1. assault occasioning actual bodily harm (domestic violence); and 2. contravening restrictions in an AVO (domestic violence).
When charged, bail was again granted with the condition that Edward reside with the Applicants, from 29 February 2024 to 18 July 2024. The Applicants' evidence was that they were unaware that Edward, or the Police, had again nominated their home for the purposes of bail. Their evidence was that they did not want him living with him, believing he would be a bad influence on Ms Campbell's 4 other adult children who live at home. Mr Franey said they were upset when they learned that Edward had nominated their home as his address for bail purposes; he was "fuming" and he complained to Police that they had not been consulted. Mr Franey said that Edward never in fact lived with them after the charges were laid and bail granted; he had left their home at the end of January 2024. He was staying in hotels, couch surfing and staying in emergency accommodation until he secured his own place approximately 4 months ago. In April 2024 Edward's bail conditions were updated as to his residential address. He lives in a caravan park on the other side of town, a distance of about 5-10kms away, a drive of about 10 minutes. They described their relationship with Edward as "strained". Ms Campbell said her only contact with Edward is via text, and the infrequent contacts are always initiated by him - just "touching base", for example, telling her about his new job. Mr Franey has no contact with him. Edward is not welcome in their home for the foreseeable future. He would have to do "a complete 180", his mother said, for them to consider having him in their home, even as a guest at Christmas. The Applicants acknowledged that Edward has made, what can only euphemistically be described as "bad choices".
There was no dispute that Edward has engaged in serious criminal offending involving firearms and violence and that he presents a serious risk to public safety if he has any access to firearms.

Confidential evidence

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Way of living or domestic circumstances

Section 11(4)(a) of the Act provides that the Commissioner, and hence the Tribunal on review, must not issue a firearms licence to a person if there is reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances. Due to the Applicants' familial relationship with Edward, the Respondent submitted that there is reasonable cause to believe that the Applicants may not personally exercise continuous and responsible control over firearms, should they be granted licences. The Tribunal must objectively be satisfied, from established facts, that the Applicants' domestic circumstances are such that they may not personally exercise continuous and responsible control over firearms: Ly v Commissioner of Police, NSW Police Force [2004] NSWADT 115 at [41]-[43].
It is clear that Edward's criminal history evidences a propensity for violence and a disrespect for rules aimed at public safety, as well as a history, disturbingly, of unlawfully obtaining a firearm, which was used to threaten others. I accept that given his previous possession of an unregistered firearm, Edward may seek to gain access to firearms accessed by the Applicants should they hold firearms licences. In the context of firearms licensing, there is no basis for differentiating between the conduct of applicants and the conduct of their son which may impact on public safety: Tolley v Commissioner of Police [2006] NSWADT 149 at [31]. The Tribunal has held that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals if they remain associated with such persons: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, at [90]; El Saadi v Commissioner of Police (No 2) [2021] NSWCATAD 336; GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73 at [8]; Mekhitarian v Commissioner of Police [2022] NSWCATAD 198.
The Applicants' solicitor referred to Finlay v Commissioner of Police [2020] NSWCATAD 5 (Finlay) at [66]-[67], where the original decision to revoke the applicant's firearms licence was set aside, notwithstanding the applicant's son who had an Firearms Prohibition Order issued against him, resided 150 metres from the applicant's house on the same rural property; he visited the main homestead infrequently, and unlike Edward, had never lived there, and did not have a key. The Respondent pointed out that, unlike in Finlay where the charges against the applicant's son were over 10 years old, Edward's convictions are recent - dating from 2020, and, importantly, there were charges as recently as February this year. His offending has included possession of an unauthorised firearm which he carried for self-protection. Also, in Finlay the applicant was on a rural property and the licence was for vermin control on the applicant's own property. Here, the Applicants' interest is primarily recreational, it appeared, with vermin control on the property of others, ancillary to that main interest. In Finlay, the applicant was an experienced licence holder, whereas the Applicants have not previously held licences, and seemed to somewhat unaware of the full scale of what holding a licence may entail.
The Applicants' solicitor also referred to Horan v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 6 where the Applicant was the son of a former member of an OMCG and lived out of town, although the applicant was employed by his father. There the Tribunal imposed a condition on the applicant. However, in that matter there was no history of the person of concern, in that case, the applicant's father accessing unauthorised firearms. Similarly, in Barrett v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 116, to which the Applicants' solicitor also referred, the Applicant had a rural property and his son was incarcerated at the time of the hearing and was going to live 100 kms away.
Edward resided with the Applicants from at least 21 July 2023 until about 20 February 2024. However, he continues to live in close proximity to the Applicants. His current bail conditions require him to reside at an address which appears to be located within a 10-minute drive of the Applicants' home. Edward only moved out of the Applicants' home a few months ago. The Applicants have previously supported him by allowing him to reside with them when he was subject to residential bail conditions for serious charges involving domestic violence and firearms offences. Within the last five years, Edward has been convicted of offences involving domestic violence, firearms, and drink driving. He has further charges pending in relation to domestic violence offences. Edward also remains subject to an intensive correction order and CCOs. He continues to live within relatively close proximity to the Applicants, given they all reside in a country town with a population of less than 20,000.
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The evidence of the Applicants is that there is virtually no association with Edward other than infrequent text messages with his mother which he initiates. They are not completely estranged though, and his mother, in particular, holds hope, it seems to me, of a reconciliation should he "do a 180" from his recent conduct. However, there is no evidence that his conduct has changed since the events giving rise to his most recent charges in February 2024. I consider that, presently, insufficient time has elapsed for me to be satisfied that he will not continue to re-offend, nor that he and the Applicants will not re-establish a relationship in the future.
For the reasons given above I consider the Applicants' relationship with Edward gives rise to serious concerns that the Applicants may not personally exercise continuous and responsible control over firearms. That view, in the absence of public interest in favour of the Applicants holding firearms licences, would lead me to affirm the decision under review.

Public interest

Before me the Respondent also submitted that it is not in the public interest that the Applicants hold firearms licences due to their familial relationship with Edward.
The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing.
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicants said that they seek firearms licences for the genuine reason of recreational hunting/vermin control. They are not farmers and do not need to use a firearm in the conduct of their activities. They have applied for licences for the purposes of the humane destruction of vermin on a property that is not owned by them. Private interests such as they described their wish to hunt while helping land-owning friends affected by vermin, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account and this cannot be outweighed by an applicant's interest in holding a firearms licence. Minimal, fanciful or theoretical risk can be excluded from consideration: Hook v Commissioner of Police [2020] NSWCATAD 250 at [77] - [80]. It was submitted on behalf of the Applicants that the risk because of their association with Edward is only theoretical and should be excluded from consideration. I do not agree. Even if nothing else about Edward's conduct were of concern, he has demonstrated an interest in obtaining access to prohibited firearms, allegedly for self-protection. The risk that he may attempt to access firearms being used by the Applicants cannot be discounted as merely theoretical. This, in my view, establishes a real and appreciable risk to public safety.
I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicants at this time.

Can the Tribunal's concerns be overcome by the imposition of conditions on the Applicants' licences?

I have found that the Applicants' relationship with Edward gives rise to reasonable cause to believe that they may not personally exercise continuous and responsible control over firearms and that that presents significant risks to public safety and that, in general terms, it would not be in the public interest for them to hold firearms licences. The Applicants attempted to address this risk by agreeing to have (unspecified) special conditions imposed on their licences. It was submitted, that, should I consider that the decisions should be affirmed, an alternative was to grant the licences but impose conditions on the licences.
Section 19(1) of the Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner (and hence the Tribunal on review) thinks fit to impose. The power to impose a condition under s 19 of the Act is discretionary and that discretion should be exercised in a way which promotes the principles and objects of the Act set out in s 3: Cusumano v Commissioner of Police [2001] NSWADT 50 at [23].
Mr Franey wrote that they have no intention or desire to purchase or own a firearm nor do they want to keep firearms on their (residential) property. They joined "the hunting club", he said to "give a genuine reason for wanting a licence". They planned to hire firearms for use at the range only but this is somewhat inconsistent with their stated genuine reason. They appeared to be unaware that firearms could be removed from the club's premises. They wrote in their statutory declarations that they do not plan to keep any firearms at their home, and Ms Campbell wrote that they would agree to a special condition on her firearms licence to that effect. They did not provide any evidence of alternative locations where they would store firearms if they were granted firearms licences.
Sergeant Burden, who is the Licensing Supervisor in the Nepean Police Area Command, gave evidence that licences do not have the space to physically record any special conditions that may have been imposed. Further, in order to manage any risk that arises due to their relationship with Edward, any special conditions on the Applicants' licences would require Police to actively check that the Applicants are complying with those conditions to ensure that Edward does not have any access to firearms by way of his contact with them. He gave a number of reasons why he considered special conditions to be unworkable: 1. Other than safe storage inspections, Police do not have a regular process of auditing or conducting checks to ensure that each licence holder complies with their licensing conditions. 2. Police do not have a general power of entry to inspect a licence holder's residence. Safe storage inspections require the licence holder's consent in order for Police to enter the property. 3. In any event, safe storage inspections serve a limited purpose of ensuring that a licence holder's storage facilities comply with safe keeping and storage requirements. Safe storage inspections are not directed to enforcing when and how a firearm is used, or who might have access to them. Most safe storage inspections are precipitated by some other incident at the premises where the firearms are stored. 4. Police do not have the resources available to perform frequent checks of compliance with licence conditions. 5. Gun clubs have no way of determining what special conditions have been imposed on a member's licence because licence conditions are not recorded on a licence and gun clubs do not have access to the Police database that records licence conditions. As such they are unable to monitor the extent to which a member complies with special conditions. 6. Even if the Applicants were restricted to hiring firearms from a gun club, most clubs permit members to take hired firearms away from the club.
Most of the impediments to the imposition of special conditions identified by Sergeant Burden, it seemed to me, were largely resource-based, that is, that the ability of Police to monitor ongoing access to, and use of, firearms after a conditional licence had been granted, was limited. That gun clubs are not in a position to render some assistance in this role seems also to be a lost opportunity, but perhaps this suggestion is unrealistic. These are observations only, however, and I accept that the evidence of Sergeant Burden accurately reflects the fact that there appears to be no practical means of proactively supervising when and how firearms might be used by the Applicants, so as to ensure that there is minimal risk that they could be accessed by Edward.
The Applicants' evidence was that they did not propose to buy a firearm and seemed to regard that decision as obviating the need for safe storage. Taking firearms away from a gun club had not been considered, nor the consequential requirement for safe storage, irrespective of whether they owned a firearm themselves. Neither had it occurred to them, it seems, that, when licensed, they could borrow firearms from their friends.
The Tribunal has previously declined to impose special conditions on the basis that the conditions were unenforceable: Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185; Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347. I observe though that there have been occasions when a condition has been imposed by the Respondent, and where the Applicant has sought to have the condition lifted or varied. See for example: Mulligan v Commissioner of Police [2020] NSWCATAD 272, O'Halloran v Commissioner of Police, NSW Police Force [2023] NSWCATAD 268, Ljubenkov v Commissioner of Police, NSW Police Force [2024] NSWCATAD 43.
Due to the serious consequences which may occur if Edward were to gain access to a firearm again and the limited capability of Police to enforce special conditions, I consider that special conditions will not adequately mitigate the risk that Edward may access firearms used by the Applicants should they be issued with firearms licences. In all the circumstances, I am reasonably satisfied, that the Applicants should not be granted a firearms licence at this time.

DECISION

The decisions under review are 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: 11 July 2024

At a glance

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Judgment (12 paragraphs)

Cases Cited (17)