Coen-Graham v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-09-26

Introduction

These are two related applications for review of decisions by the Commissioner of Police ("the Commissioner" or "the Respondent") under the Firearms Act 1996 ("the Firearms Act"). The decision in relation to Mr John Coen-Graham ("the First Applicant") was to revoke his Category AB firearms licence on the basis that it would not be in the public interest for him to continue to be authorised for firearms. The decision in relation to Ms Esther Coen-Graham ("the Second Applicant") was to revoke her Category AB firearms licence on the basis that there was reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.
Each decision was affirmed on internal review.
The two matters were heard concurrently and the evidence in one was considered as evidence in the other. Mr Mani Shishieh appeared on behalf of both applicants. Mr Thomas Poberezny-Lynch appeared on behalf of the Respondent.

Background

The internal reasons for decision in each matter provides a reasonable summary of the events which lead to the revocations.
In regard to the First Applicant the internal reviewer stated: In arriving at my decision in this matter I have considered the issues raised by your legal representative and I have examined the records available to the NSW Police Force including, but not limited to, the following: • That you were authorised for firearms under the current Act for approximately 11 years; • That on 19 October 2019 police attended your location and inspected your safe keeping arrangements. Police report compliance with legislation and approved your safe keeping facilities, as inspected on this date; • That on 12 August 2021 police were contacted to attend Nolan's Auto Parts Store located on Imlay Street, Eden. It is reported that you failed to wear a mask or check in using the QR code or sign in register. Upon a staff member asking you to wear a mask, you began yelling at them that it was against your civil rights and refused a request to wait at the door of the premises to comply with public health orders. Upon attendance, police report that you had already left and as such attempted to make contact with you via telephone. Police advise that when finally making contact you were extremely hostile and would not confirm if you were at home, and when they requested to attend your address about the incident, you threatened legal action if they entered your property. Based on your response to police and not offering any reasonable excuse for not wearing a mask, you were issued with a COVID breach fine for not wearing a mask in a retail premises; • That on 8 December 2021 police were contacted by the Bega Medical Centre due to an incident that occurred at the Centre. It is reported that you attended for a medical appointment and did not wear a mask. When staff asked you to comply with the NSW Public Health Order, it is reported that you became hostile, abusive and aggressive towards staff and some of the patients in the waiting room. At this time, you have also claimed to have a mask exemption however refused to produce evidence of that exemption. You then proceeded to quote disability legislation. Staff report that that due to your behaviour, some patients evacuated with one patient becoming so distressed she was seen to be crying. Several attempts were made to calm you down and you were offered alternative options for your appointment, which you refused. You again left before police arrived; • That on 9 December 2021, police attended your property in an attempt to serve you with a Notice of Suspension of your firearms licence and to seize your firearms. Upon sighting the police officers, it is reported that you asked your wife, Esther Coen-Graham, to begin recording on her mobile phone. Police had also activated their 'Body Worn Video' (BWV). The BWV shows that you were immediately hostile and quarrelsome with police, repeatedly questioning police powers and their authority. You also asked the police on several occasions whether they were 'acting under oath as an officer of the Crown. Further, when police would not continue to communicate with you on this topic, you stated that they needed to be arrested for impersonating police, as officers of the Crown, and would be charged with treason; • That on 30 December 2021, you were served with a Notice of Suspension which provided that the reasons your firearms licence was suspended was due to concerns surrounding your behaviour at the Doctors surgery in Bega and your mental health; • That on 15 November 2022, your firearms licence was revoked; • That on 22 November 2022, police attended your property to serve your wife with a Revocation Notice for her firearms licence. At this time, police have activated their BWV and again, you are recorded as being verbally aggressive and argumentative towards police, talking loudly over both your wife and the police officers who were attempting to converse with your wife. BWV records you as repeatedly, and forcefully, telling police that they had no authority to enter your property, that they were trespassing and would be prosecuted for the amount of $400,000 ounces of gold, and they were in violation of your rules …

Mandatory Face Coverings Order

Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 ("the Mask Direction order") was made pursuant to section 7 of the Public Health Act 2010. The Mask Direction came into effect on 26 June 2021 and was repealed on 11 September 2021.
It is an offence under section 10 of the Public Health Act not to comply with a ministerial direction, such as the Mask Direction Order, without reasonable excuse. Clause 5(1)(d)(i) of the Mask Direction Order directed that a person must wear a fitted face covering at all times when the person is in an indoor area in retail premises.
Clause 5(6)(b) of the Mask Direction Order provided that the requirement to wear a fitted face covering pursuant to clause 5(1) did not apply to a person with a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable including, for example, a skin condition, an intellectual disability, autism or trauma.
The Mask Direction Order was operational for less than three months. The Public Health (COVID-19) General Order 2021 commenced on 11 October 2021.
It is not in dispute that the First Applicant had an exemption and a reasonable excuse for not wearing a mask during the period of the Mask Direction Order.
The First Applicant relies on a report dated 6 September 2023 provided by Doctor Rodney Blanch. Doctor Blanch has been the First Applicant's treating psychiatrist since 2018. I will limit my discussion in relation to this issue to protect the privacy of the First Applicant.
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Issues

In each matter, the Tribunal is to determine whether the correct and preferable decision is to revoke the Applicant's firearms licence.
This determination requires consideration of whether the First Applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so. In regard to the Second Applicant, it is necessary to consider whether there is reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances.

The role of the Tribunal

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. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Respondent to refuse an application for a firearms licence.
Section 75 of the Firearms Act provides for the review by the Tribunal of a decision to refuse an application for a firearms licence under the Firearms Act. This application is made under section 75 of the Firearms Act and the ADR Act.
Section 63 of the ADR Act provides that in determining and application, the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may: 1. exercise all of the functions that are conferred or imposed by the Firearms Act on the Respondent; and 2. affirm the Decision, vary the Decision, set aside the Decision and make a decision in substitution of the Decision, or set aside the Decision and remit the matter for reconsideration by the Respondent.
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.
The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
The underlying principles of the Firearms Act are, relevantly: 1. to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and 2. to improve public safety by imposing strict controls on the possession and use of firearms and by promoting the safe and responsible storage and use of firearms.
The underlying principles set out in section 3(1) of the Firearms 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: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at paragraph [44].
Section 11 of the Firearms Act provides: 11 General restrictions on issue of licences … (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 ... (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 ...
Section 24 of the Firearms Act provides: 24 Revocation of licence ... (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or … (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or … (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 provides that the Commissioner 'may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence'.

The public interest

The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: 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 Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Cusumano v Commissioner of Police at paragraph [23] Deputy President Hennessy stated: "There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy said that in terms of public safety: "27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Ward v Commissioner of Police dealt with the issue of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 paragraphs [64] - [66].
In determining this issue, 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
As noted, the Respondent contends that the First Applicant is no longer a fit and proper person to hold a firearms licence and that it is not in the public interest for him to continue to hold the licence.

Fit and proper person

The Firearms 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 Firearms Act on numerous occasions.
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, [37]; Smith, [30].
In the context of the Firearms 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 paragraph [22].
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.
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.
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.
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."

Material before the Tribunal

The Respondent relies on a bundle of documents ("the section 58 documents") provided pursuant to section 58 of the ADR Act. Event records from the Respondent's electronic database ("COPS") set out details in relation to the events referred to in the internal review reasons. This material also includes statements provided by persons who had witnessed those events.
The Respondent's solicitors also provided written submissions.
The First Applicant relies on his own evidence and submissions by his solicitor. He provided two affidavits and appeared at the hearing, gave evidence, and was cross-examined. He also relies on a report provided by Dr Rodney Blanch, Psychiatrist, and a number of references. References were provided by neighbours, Ian Hamdorf and David Bradford, friends, Anita Coakley and Luke Jewett, School Principal, Peter Claxton and Assistant School Principals Emma Kettle and Glenn Dinwoodie, an accountant and tax advisor, Grace Shearer, a long-term friend and fellow veteran, Guy Bootes, long-term acquaintances, Stephanie Turner, Vicki McCredie, Tina Janssen, Anne Michele Bootes and Ian Lucas, former family support worker and social worker, Pamela Bradford, a Past State President Country Women's Association of New South Wales, Stephanie Stanhope.
I note for completeness that each of the referees speaks highly of the First Applicant and his relationship with his family and, in particular, with the Second Applicant.
The Second Applicant relies on her own evidence and submissions provided by her solicitor. Several of the references refer to the Second Applicant's strength of character and take issue with the suggestion that she would give way to pressure from the First Applicant to provide him with access to firearms.

The First Applicant

The Commissioner submits that the Tribunal should dismiss the First Applicant's Application because:
he is no longer a fit and proper person to hold a licence;
he may not personally exercise continuous and responsible control over firearms because of his intemperate habits; and
it would be contrary to the public interest for him to continue to hold a licence.
The First Applicant has come to Police attention on a number of occasions where there were allegations of aggressive behaviour. The Respondent submits that these incidents reveal a lack of self-control and character traits which would make the general public concerned about him being authorised to use and possess firearms.
As noted above, the internal review reasons set out the Respondent's position in relation to an incident on 12 August 2021 in which it is alleged that the First Applicant became aggressive and abusive to staff at an Auto Parts Store. That incident concerned the request that the First Applicant wear a face mask in compliance with public health orders. It is further alleged that he became extremely hostile when he was contacted by police about the incident.
The internal review reasons also set out the Respondent's position in relation to an incident at the Bega Medical Centre on 8 December 2021. Again, the incident concerned a request that the First Applicant wear a face mask and it is alleged that became aggressive and abusive towards staff at the Medical Centre and some of the patients in the waiting room.
It is not in dispute that police attended the Applicants' property ("the property") on 9 December 2021. This attendance was in an attempt to serve the First Applicant with a Notice of Suspension of his firearms licence and to seize his firearms. The interaction between the police officers and the Applicants was recorded on Body Worn Video ("BWV"). A copy of the video is in evidence. The Respondent contends that the BWV shows that the First Applicant was immediately hostile and quarrelsome with police, repeatedly questioning police powers and their authority. The Notice of Suspension was ultimately served on 30 December 2021.
It is alleged that when police attended the property on 9 December 2021, the First Applicant became verbally aggressive and argumentative towards police, talking loudly over both the Second Applicant and the police officers who were attempting to converse with the Second Applicant. It is further alleged that the First Applicant repeatedly, and forcefully, told police that they had no authority to enter the property, that they were trespassing and would be prosecuted. The interaction between the police officers and the Applicants was recorded on BWV and a copy of the video is in evidence.
The Respondent submits that due to the First Applicant's history of aggressive, intransigent, and domineering behaviour, particularly from August 2021 to 22 November 2022, as well as his incorrect understanding of the law, the Tribunal should be satisfied that he is no longer a fit and proper person to hold a firearms licence. In particular the Respondent refers to:

the auto-parts store incident on 12 August 2021;
the Bega Medical Centre incident on 8 December 2021; and
the First Applicant's conduct towards police officers who attended the property in December 2021 and November 2022.

The Respondent relies on the BWV of the police attendance at the property as showing:

the First Applicant acted in an aggressive, domineering, and intransigent manner towards police;
he was dogmatic in his incorrect view that police required a warrant to enter the property;
he was also domineering towards the Second Applicant;
he asked police to leave as, without a warrant, they were trespassing;
he continued to talk over the police officers and repeatedly insisted that they required a "writ" or a "warrant" to be on the property;
he repeatedly asked police whether they had a commercial contract in order to deal with him and insisted that if they did not, they had no reason to be there;
when the police officers explained that their lawful reason was to serve a notice of suspension of the First Applicant's firearms licence and to seize his firearms, the First Applicant continued to insist, incorrectly, that police needed an order from a judge and that police had no lawful reason to be on the property;
the First Applicant accused the police officers of "impersonating an officer of the Crown" and "acting treasonously";
throughout this exchanges, the First Applicant continued to talk over the police officers.

The Respondent notes that Parliament has entrusted the Respondent to uphold the regulatory scheme of firearm possession and use. Further, the Respondent submits that: 1. On 9 December 2021, police had a lawful purpose for attending the property as they were personally serving a notice of suspension of the First Applicant's firearms licence under s. 22(1) of the Firearms Act. 2. As the First Applicant's licence was suspended, police were authorised to enter the property to seize his firearms under section 25(2) of the Firearms Act. The First Applicant's assertion that police required a "warrant" or "writ" from a judge or a "commercial contract" to be on the property was incorrect. 3. On 22 November 2022, police had a lawful purpose for attending the property as they were personally serving a notice of revocation of the Second Applicant's firearms licence under section 24(5) of the Firearms Act. 4. As the Second Applicant's licence was revoked, police were authorised to enter the property to seize her firearms and firearms licence under section 25(2) of the Firearms Act. On that occasion, the First Applicant incorrectly asserted that police needed a warrant to be on the property.
The Respondent contends that it is apparent from the BWV that the First Applicant had an incorrect understanding of the law. On 9 December 2021 and 22 November 2022, he asserted that police required a warrant to attend the property. The Respondent also submits that the First Applicant's incorrect understanding of the law on 9 December 2021 and 22 November 2022 demonstrates he is not a fit and proper person to continue to hold a licence.
The Respondent points to the view expressed by Senior Member Isenberg in Chaaban v Commissioner of Police, NSW Police Force [2023] NSWCATAD 93 at paragraph [83] where she stated: It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them ...
The Respondent submits that, by his conduct, the First Applicant has demonstrated that he does not understand or comprehend the requirements of the Firearms Act.
The Respondent also notes that no-trespassing signage that has been erected on the property and the fact that the signage purports to restrict police access to the property demonstrates the First Applicant's incorrect understanding of the Firearms Act.
The Respondent further submits that the First Applicant's aggressive, domineering, and intransigent behaviour suggests there is a real risk that he is unable to manage his behaviour even when he is unprovoked or when given reasonable directions by others.
The Respondent relies on the views expressed by the Appeal Panel in relation to the expression "fit and proper person" in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at paragraph [58]: The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.

The Second Applicant

The Respondent considers that it is not in the public interest for the Second Applicant to continue to hold her licence. The Respondent says that there is reasonable cause to believe that the Second Applicant may not personally exercise continuous and responsible control over firearms because of her living or domestic circumstances with the First Applicant. The Respondent also submits that in the circumstances it would be contrary to the public interest for her to continue to hold a licence.

She may not personally exercise continuous and responsible control over firearms.

The Respondent submits that due to the familial association there is a risk that the Second Applicant might be pressured to provide the First Applicant with access to firearms. The Commissioner contends that the BWV footage of the incident at the property on 9 December 2021 demonstrates that:

the First Applicant directed the Second Applicant not to talk to police or answer their questions;
the First Applicant pushed the Second Applicant inside the house;
the First Applicant exercises a degree of control over the Second Applicant; and
the Second Applicant is unable to control the First Applicant's aggressive behaviour.

The Respondent contends that the BWV footage of the incident at the property on 22 November 2022 demonstrates that:

the Second Applicant was unable to control the First Applicant's aggressive and domineering behaviour;
when the Second Applicant tried to have a reasonable conversation with police about the notice of revocation, the First Applicant talked over her despite her efforts to calm him down and her request for him to stop yelling at police; and
the First Applicant followed the Second Applicant and police to the front of the house where he continued to yell aggressively at police and talked over the Second Applicant.

The Applicants live together at the property. The Respondent contends that this gives rise to a risk that the First Applicant may have access to the Second Applicant's firearms. The Respondent submits that these concerns would not be negated by storage of the firearms at a separate location because the Second Applicant's sole genuine reason for possessing firearms is for use at the property where the First Applicant resides.
The Respondent further submits that the First Applicant exercises a degree of control over the Second Applicant and that she may provide him access to firearms if she were permitted to use them at the property. The risk that the First Applicant might access the Second Applicant's firearms means the Tribunal should not be satisfied that there is virtually no risk in the Second Applicant using her firearms at the property.
Accordingly, the Respondent submits, the Tribunal should be satisfied that the Second Applicant may not exercise continuous and responsible control over firearms due to her way of living or domestic circumstances.

Not in the public interest for the Second Applicant to continue to hold a licence

The Respondent submits that, for the same reasons, it is not in the public interest for the Second Applicant to continue to hold a licence.
In these circumstances, the Respondent submits that the Tribunal would not be satisfied that there is virtually no risk in the Second Applicant having access to a firearm. Accordingly, the Tribunal should find that it is not in the public interest for her to continue to hold a licence and affirm the decision.

The First Applicant's Case

The First Applicant attended the hearing and gave evidence in support of his case. He does not accept the Respondent's contentions with respect to the incidents referred to above.

The 12 August 2021 incident

It is not in dispute that the First Applicant attended an Auto Parts Store on 12 August 2021. He was refused service due to the absence of a face covering. Police received a complaint from staff at the store that the First Applicant had become aggressive and abusive. However, the First Applicant's evidence was that he was the subject of abuse from the staff at the store and that he reacted to that abuse. He said that he felt discriminated against and belittled. He denied that he had been aggressive and abusive, but he agreed that he had complained that the staff were blindly following their policy, with disregard to unlawful policy, and compared this to conduct of Nazis.
At that time, the First Applicant was an exempt person within the meaning of Section 10 of the Public Health Act 2010 and exempt from complying with the Public Health Order that required the wearing of face masks.
The First Applicant said that when he was contacted by police to explain his behaviour he was not asked about an exemption. He said that he exercised his right to remain silent when questioned. He was issued a fine which was ultimately set aside in the District Court. The prosecutor conceded that the First Applicant had a valid exemption and the First Applicant felt that his exemption should have been sufficient in his dealings with the police.
The First Applicant submits that there is no basis for making adverse findings in regard to the 12 August 2021 Auto Parts Store incident, or making a finding that there was disregard for NSW laws when in fact he was not in breach of those laws.

The 8 December 2021 incident

It is not in dispute that the First Applicant attended the Bega Medical Centre for a scheduled appointment on 8 December 2021. The purpose of the appointment was to maintain certification in relation to his Department of Veterans' Affairs benefits and this required a face-to-face attendance. He asserts that he was refused service due to not wearing a face covering, despite the fact that he had a lawful exemption and despite his assertions of that status to staff. He said that the staff who he dealt with were overbearing, rude and confronting.
He further says that he was offered to undergo an assessment in the carpark and that this would have involved a full physical check-up and include a blood test. He regarded that this suggested approach was inappropriate, invasive, and humiliating.
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He said that he pointed out his exemption and asked if the staff had looked at his file to find a letter from Dr Blanch with the exemption, but they refused. He said that he also referred to the Anti-Discrimination Act but that the medical centre staff disregarded it. He was ultimately told that he was to leave the medical centre as he was trespassing.
The First Applicant denied that he had been threatening. He agreed that he had spoken loudly but he said that he had been sitting calmly and waiting. He said that he had asserted his position, but that he had not been intimidating. He denied that he was putting others at risk by not wearing a mask and that in fact the mask was to be for his own protection.
He accepted that he could have lowered his tone when expressing his concerns about discrimination.
The First Applicant submits that in these circumstances, in determining whether he is a fit and proper person to hold a firearms licence, no weight should be given to either the 12 August 2021 incident or the 8 December 2021 incident. He said that he had complied with the recommendation that he undergo a mental health assessment and he attended psychiatrist appointments for that purpose.
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The 9 December 2021 incident

It is not in dispute that police attended the property on 9 December 2021 in an attempt to serve the First Applicant with a Notice of Suspension of his firearms licence and to seize his firearms. The First Applicant said that he was not given any warning of the police attendance at the property. At the time, he was on his way to an appointment, and he thought that he was going to have to cancel his appointment. He said that he was caught off-guard, but he was ready to give his version of what had happened on 8 December 2021.
He accepts that the police officers who attended the property were authorised to do so. He conceded that his understanding of the Firearms Act was incorrect, and that he mistakenly understood that police could not attend the property without a warrant. He contends that he now has a good understanding of his obligations under the legislation. He accepts that the no-trespassing signage does not restrict the police authority to attend the property. His evidence is that the purpose of the signage is to protect himself from unlawful intruders and for purposes of bio-security on the property.
In regard to his behaviour during the police attendance on 9 December 2021, the First Applicant denies that he was aggressive towards the police but rather, he says that he engaged in assertive communication with the police officers. He explained that his military training was to maintain eye-contact and to be assertive and that there is a significant difference between assertiveness and aggression. In contrast, he found the behaviour of the police officers to be intimidating.
He submitted that in the eleven years in which he held a firearms licence there was no record of any breaches of the Firearms Act. He said that there is no record of domestic violence, and he has adhered to the licence suspension. He points to the medical evidence to show that he is receiving ongoing care and submits that in the circumstances there is no risk to the public if he is allowed to have access to firearms. Therefore, the decision should be set aside.

The Second Applicant's Case

The Second Applicant attended the hearing, gave evidence, and was cross-examined. Her evidence is that she is a carer for the First Applicant and she has no concerns in relation to being controlled by him.
She does not accept that the First Applicant acted in a controlling manner towards her at the time of police attendance at the property on 9 December 2021. In contrast, she says that the First Applicant acted in a protective manner towards her. She denies that the BWV shows him pushing her inside the house. She says that the BWV shows him guiding her. She further asserted that she is not responsible for the First Applicant's behaviour.
She accepts that the police officers who attended the property were authorised to attend. However, she said that she thought it would have been polite for police to have contacted her in advance.
She does not dispute that when police attended the property on 22 November 2022, she initially refused to accept service of a Notice. She said that the police had taken three months to serve the Notice and it could have been done by post. She asked the police officers to give the Notice to her lawyers.
The Second Applicant maintains that she has never done anything illegal in regard to her firearms and had complied with all requirements that the Respondent has put in place. This includes requirements in regard to storage of her firearms so that the First Applicant has no access to the firearms. She submits that, in the circumstances, there is no risk to the public if she is allowed to have access to firearms. Therefore, the decision should be set aside.

The First Applicant

I accept that the First Applicant has health issues which affect his conduct when he is placed in a position where he feels vulnerable. I also accept that he has received treatment for his condition over a long period of time and that the treatment is ongoing.
The First Applicant's evidence is that he engages in what he regards as assertive communication techniques. However, I have viewed the BWV footage filmed during the police attendance at the property on 9 December 2021. It is my view that it was reasonable for the police officers who were in attendance to regard the First Applicant's conduct as aggressive. The internal review decision described his behaviour as "hostile and quarrelsome". That is a reasonable description. In light of the First Applicant's evidence, I am also of the view that it is likely that his attempts at assertive communication at the Bega Medical Centre on 8 December 2021 and at the Auto Parts Store on 12 August 2021 were also interpreted as aggressive conduct.
Notwithstanding the First Applicant's intentions, the medical evidence suggests that there is potential for similar behaviour and similar misunderstandings in the future.
However, in the circumstances, I regard the First Applicant's conduct as directly related to his condition. I am satisfied that he is likely to continue receiving treatment in regard to his condition and, so long as his treating medical practitioners believe that his condition does not give rise to a risk to the public, it should not restrict him from having access to firearms. This is consistent with the advice received from Doctor Blanch who stated: "I do not believe that there would be any risk to himself or others if he was to return to having his weapons."
I note the Respondent's concerns in relation to Dr Blanch's opinion. I do not share those concerns. Dr Blanch has been the First Applicant's treating psychiatrist since 2018 and is in a position to provide an opinion in regard to the state of the First Applicant's mental health. In my view Dr Blanch's opinion should be given reasonable weight.
There is no suggestion that the First Applicant has ever breached the Firearms Act in relation to the use or storage of his firearms. I accept that his military training has instilled critical skills in regard to the handling firearms. On the evidence before me I am not satisfied that the First Applicant's conduct leads to the conclusion that he is not a fit and proper person to hold a firearms licence.
However, it is apparent that at least up until December 2021 the First Applicant's understanding of his obligations under the Firearms Act was severely deficient. On the evidence before me I am not satisfied that this deficiency has been addressed adequately. I agree with the Respondent that the First Applicant's incorrect understanding of the law leads to the conclusion that he is not a fit and proper person to hold a firearms licence.
In my view, there remains a risk to the public if a licensee does not understand their obligations in regard to not just the use or storage of firearms, but also in regard to compliance with other aspects of the firearms legislation. The First Applicant will need to address this issue before he should be permitted to again have access to firearms.
As noted by the Appeal Panel in Austin v Commissioner of Fair Trading, an applicant for a licence needs to show that they have the requisite knowledge of the duties and responsibilities of the holder of the particular licence. At this stage, the First Applicant has not met this requirement.
Until such time as he is able to do this, I am unable to find that he is a fit and proper person to hold a firearms licence. Similarly, there remains a risk to the public and therefore it is not in the public interest for him to hold a firearms licence. It follows that the decision to revoke his Category AB firearms licence should be affirmed.

The Second Applicant

I accept that the Second Applicant has a history of compliance with her obligations under the firearms legislation. The decision to revoke her licence was related to the First Applicant's conduct and the concern that she may not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances. I do not share those concerns
The evidence before me suggests that the Second Applicant is a strong personality. There are several unchallenged referee statements which make that clear. Her own evidence is that the First Applicant has never attempted to coerce her into taking actions against her will. She stated that she does not feel threatened or in any danger being around him. She also noted that the First Applicant's psychiatrist has certified that the First Applicant is of no danger to her.
It is not in dispute that when she held a firearms licence, the Second Applicant stored her firearms at the address of her father and that this was located an hour's drive from the property. I do not share the view that the Respondent's concerns would not be negated by storage of the firearms at a separate location. There is no suggestion that there was any issue in regard to that storage or the subsequent use of her firearms in the past.
In my view, it is improbable that the Second Applicant may be coerced into providing the First Applicant with access to firearms if she were permitted to use them at the property.
On the evidence before me, I am satisfied that there would be virtually no risk to the public if the Second Applicant were to have access to firearms on those same conditions.
In the circumstances it is my view that the correct and preferable decision is to set aside the decision to revoke the Second Applicant's Category AB firearms licence.

Matter 2023/00111555 The decision to revoke John Coen-Graham's Category AB firearms licence is affirmed.

Matter 2023/00111571 The decision to revoke Esther Coen-Graham's Category AB firearms licence is set aside.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2024

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Judgment (22 paragraphs)

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Cases Cited (15)

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