Cook v Commissioner of Police

Relevant legislation

1. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act, relevantly: 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 … (2) The objects of this Act are as follows: … (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
2. The Act, in setting out restrictions on the issue of licences, provides, relevantly: 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 (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
3. Section 11(7) of the Act provides that the Commissioner may also refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
4. Section 24(2)(d) of the Act provides that a firearms licence may be revoked for any reason prescribed in the regulations. Clause 20 of the Regulation provides that a licence may be revoked if it is not in the public interest for the licensee to continue to hold the licence.
5. Section 19 of the Act provides that a licence may be issued subject to conditions.
6. Section 70 of the Act imposes severe penalties on a person who, in connection with an application for a firearms licence, makes a statement or provides information that the person knows is false or misleading in a material particular.

Evidence

1. The Applicants, who provided affidavits sworn on 11 June 2021, gave evidence, and were cross-examined. In addition to the s 58 documents, the Respondent filed an affidavit of Constable John Moy sworn 28 June 2021, who gave evidence and was cross examined.

Tribunal's approach

1. Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34].

CONSIDERATION

1. Before me, the Respondent submitted that Mr Cook is not a fit and proper person to hold a firearms licence, but did not detail any of the provisions of s 11(4) of the Act relied on. It was also submitted that it was not in the public interest that he be granted a firearms licence: s 11(7) of the Act.
2. As to Mrs Cook, the conditions imposed on her licence reflect the Respondent's concern about Mr Cook.

What events led up to Police seizing the Applicants' firearms?

1. There was no dispute about the events of 4 July 2020, when an incident occurred at Mr and Mrs Cook's property, at Glen Innes. Their 23 year old son, Mitchell Cook (Mitchell), who did not live with them, attended their house whilst intoxicated and became aggressive towards his parents and caused damage to their house. When Mr Cook attempted to control his son, Mitchell punched him. Mr Cook wrestled him to the floor and control was achieved. Mitchell was taken to his bedroom where he passed out.
2. As a result of this incident, Police were contacted and Constable Moy and another officer attended, by which time, the situation had deescalated. Mr and Mrs Cook told Police that they did not wish any charges to laid against their son. Nonetheless, Police arrested Mitchell and removed him from the premises. He was subsequently charged with the assault of Mr Cook and with damaging the Applicants' property. For the further protection of the Applicants, Police also issued a provisional domestic violence order.
3. On 29 July 2020, Mitchell's matters were dealt with at Glen Innes Local Court and a Final Apprehended Violence Order was made for the protection of Mr and Mrs Cook and anyone with whom he has a domestic relationship.
4. Before me, Mr Cook gave evidence that on 7 July 2020, he and his wife each received a phone call from the Police regarding their firearms. Constable Moy thought he had only spoken to one of them, but could not recall which. Arrangements were made for Police to attend the Cooks' property to seize four firearms registered to Mr Cook and one firearm registered to Mrs Cook. Both Mr and Mrs Cook said they thought Police were coming to collect their firearms due to the incident with Mitchell on 4 July 2020. Mrs Cook said Constable Moy told her they were coming to collect the firearms and their licences and she said in her evidence she did not ask why Police wanted the licences as well. Both Mr and Mrs Cook said in their evidence that at no time was there any reference to "suspension" in their conversations with the Police. Constable Moy's recollection, however, was that he had used the word "suspension".
5. Sometime in the early evening of 7 July 2020, while they were preparing dinner, Constable Moy and another constable came to their home. Mr Cook agreed that he had seen Constable Moy start to complete some paperwork in the kitchen which he assumed was because the Police were seizing the firearms. He then he went with the other constable to get the firearms which they transported to the Police vehicle.
6. Constable Moy deposed that while Mr Cook and the other constable were retrieving the firearms, Mrs Cook handed him both her own firearms licence and that of her husband. Both Mr and Mrs Cook thought that they had each handed the officers their firearms licences. In cross-examination Mr Cook said he had put it on the kitchen bench. Ultimately, nothing turns on who provided the Police with the licences.
7. Mrs Cook said that Constable Moy had a "notebook type of book" and that he was "checking off the firearms". She said there was no document in relation to "suspension", and neither was there any discussion about suspension. Constable Moy said that he told Mrs Cook that he was preparing Notices of Suspension. In his evidence Constable Moy explained that the Notice of Suspension form is in a carboned notepad. The original is given to the person, one copy goes to the firearms registry and the third remains in the notebook which is retained at the Police station. He thought the top copy was green and he thought the other two copies were red and blue. Mrs Cook said in her evidence that once Constable Moy had completed the paperwork he pulled it out of the notebook. In her affidavit she wrote that she remembered that Constable Moy handed her some papers but she said she did not look at them and just put them next to the knife block on the bench.
8. Mr Cook said he understood that his wife received "some paperwork" from Constable Moy, but did not believe that he was personally handed any paperwork. At the time he thought that the paperwork was a receipt or a record of Police taking the firearms. Constable Moy said that he handed Mr Cook his Notice of Suspension when he returned from securing the firearms. Mr Cook accepted that he did not look at the paperwork properly. Mr Cook's evidence was that he had no idea the paperwork was in relation to his licence being suspended. He did not actually think that he had done anything at all to warrant a suspension, as he had been the victim of his son's assault, and not the perpetrator. Mr Cook was adamant that they were not told that their licences had been suspended.
9. Mr Cook recalled that once they returned to the house, there was a general conversation about where Mitchell was living and where he had lived since he moved back to Glen Innes. He recalled that as the constables were leaving he had asked when they could pick up the firearms. He said one of the Police officers said words to the effect that they could send an email and make an appointment to come and pick them up after that 28 days. Mrs Cook said she thought the procedure was as it had been in 2017 (see below), when they just attended after 28 days to collect their seized firearms. Consistent with their understanding, on 4 August 2020, Mr Cook sought the return of the firearms. He did so, he said, because he understood Constable Moy to have told him they could be returned after 28 days, if he applied in the appropriate manner.
10. Mr Cook said in his evidence that about 7-9 months later he found a copy of the suspension notices in their filing cabinet while looking for information for their solicitor. The documents were white with black writing. Mrs Cook said in cross-examination that she did not remember who had filed the documents or when they had been filed. They were just "in with everything" about their son.
11. A copy of the Notices of Suspension was attached to Constable Moy's affidavit; they are clearly and boldly headed "NOTICE OF SUSPENSION". The Respondent submitted that it is not plausible that neither Mr nor Mrs Cook ever looked at the Notice of Suspension. It was also submitted that it is implausible that neither connected the act of the Police taking possession of the physical firearms licence card with being an action referable to the status of the licence. I do not consider that the taking of the licences would necessarily lead Mr and Mrs Cook to conclude that their licences had been suspended, given that they were firmly of the view that their firearms had been seized because of the incident with their son. What is clear though, at the very least, both were careless in not reading the "paperwork" provided by Constable Moy, which I find were Notices of Suspension. Had they done so, they would have been unlikely to have merely "filed" the "paperwork" and not located it until some months later. As discussed above, consistent with their understanding of what had transpired that evening, they sought the return of their firearms licences on 4 August 2020.

Mr Cook came to Police attention: 2001

1. On 10 November 2001 Police were called in relation to a domestic disturbance involving Mr and Mrs Cook. The Event Report describes that there had been ongoing verbal arguments for some three days. On 9 November 2001 Mrs Cook returned to their home after a day out to find her clothes strewn over the front lawn. Mr Cook came from out of the house, grabbed his wife and put her in a headlock. He demanded to know where she had been. Mrs Cook gathered her clothes and fled from the home and went to her parents. Mr Cook phoned her there several times telling her to get home. Mrs Cook then contacted the Police. She told Police that she held fears for her safety and that of her children, but that she did not want any charges laid. Police had an apprehended violence order issued and served on Mr Cook.
2. The Respondent submitted that I should reach adverse conclusions about the Applicant's fitness and propriety to hold a firearms licence, based on this occurrence, which, I observe was now nearly 20 years ago. In view of the passage of time, I place very little weight on the reported events. Further, I observe that the Applicant's licence was renewed in 2003, 2008, and 2015, so the event clearly did not affect those applications.

Mr Cook came to Police attention: 2017

1. On 29 March 2017 Mr Cook again came to Police attention. The Event Report discloses that Mrs Cook had added a Facebook friend from her school days. Mr Cook believed this to indicate that she was having an affair. The accusations were made over a number of days. Mr Cook broke his wife's iPad. Mr Cook continued to verbally abuse his wife; he threw things around the house; he called her a "slut". She fled the house and went to her sister's home. The sister called the Police. Mrs Cook told Police that she believed her marriage was over, but she did not want Mr Cook charged or an AVO issued. Mrs Cook informed Police that she had an AVO against Mr Cook 20 years ago and it "brought her much grief" and she didn't want another one. When asked in cross-examination to what she referred, she said that a friend who was a police officer had brought issues between Mr and Mrs Cook to the attention of Police in 2001, resulting in the AVO and she had lost her friendship because of that.
2. Later in the evening of 29 March 2017, after the Police had left, around 10.10pm Mr Cook went to Mrs Cook's sister's house. He told his wife that he had taken a large amount of Nurofen and was going home to die. This was reported to Police who attended and spoke with Mr Cook. He told them he had stopped drinking much earlier. He realised that it was likely his marriage was over. He denied taking any pills and showed Police an unopened box of Nurofen. He denied having any intentions of hurting himself or anyone else. He was not scheduled under the s 22 of the Mental Health Act 2007. In his affidavit Mr Cook noted he is not on any medication for any mental health concern, nor has he ever been on any medication pertaining to his mental health. In his evidence he said that he had never been diagnosed with any mental health condition. It appears his threats of self-harm were clearly nothing more than hyperbole; attending Police did not consider his conduct of sufficient concern to warrant medical intervention.
3. Despite no criminal charges being laid nor any AVO issued, Police assessed the situation as being one which justified the seizure of firearms. In her affidavit Mrs Cook wrote that the Police had come to collect their firearms and licences and to get them back, had to wait 28 days. She did not believe the licences had been suspended, and they received no paperwork to that effect. No evidence was before me about what may have been provided to Mr and Mrs Cook at that time.
4. Once again, the Respondent submitted that I should reach adverse conclusions about the Applicant's fitness and propriety to hold a firearms licence because of this event, and that it also raised issues of Mr Cook's mental health. It was submitted, that, given the 2001 event, the conduct could not be considered in isolation. There was, as is clear, some 16 years between the events, and I am not prepared to conclude that there is some ongoing misconduct by Mr Cook and flawed character traits, as the Respondent submitted. Neither do I find there to be any evidence that Mr Cook suffers any mental health issues such as might affect his ability to maintain control over firearms.

Mr Cook's application for a new firearms licence

1. On 6 July 2020 Mr Cook was sent a Notice of Expiry of Firearms Licence (Expiry Notice) from the Firearms Registry. While there was no evidence about the circumstances by which an Expiry Notice is issued, it was clear from its terms, that this is generated by way of reminder to a licence holder that their licence is about to expire. Further, issuing such an Expiry Notice is consistent with there being an existing licence, including one which is suspended, as compared to a licence that had been revoked or had already expired. The timing is both co-incidental, and perhaps, in the circumstances, unfortunate.
2. Mr Cook wrote that he did not want to leave the renewal application until the last minute, so, on 17 July 2020 lodged his application for a fresh firearms licence. On that form, under the section 'Personal History', he crossed the 'NO' box in answer to a question: Have you in NSW or elsewhere, a. Been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked? (Tribunal's emphasis) ….
3. The form also contains a declaration which states: • I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this declaration is true and correct in every detail • I agree to the NSW Police Force undertaking such enquiries as are necessary to establish that the information I have provided in relation to this application is true and correct
4. The Respondent submitted that Mr Cook had knowingly provided false or misleading information in the application by failing to disclose that his firearms licence had been suspended.
5. Mr Cook in his evidence said he was unaware of the suspension until 20 April 2021, when the internal review determination was made. In his affidavit he wrote that at the time of completing the application, he had no idea that his licence was suspended, especially after he had received the Expiry Notice to reapply for the licence. It was submitted that, at the time of making his application to renew his licence, on his evidence and that of Mrs Cook, he believed the seizure of his firearms had was solely to do with his son's behaviour.
6. If Mr Cook had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. As I said very recently in Balle v Commissioner of Police [2021] NSWCATAD 187(Balle) at [14] it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence.
7. Mr Cook said that the error on his application was a genuine mistake and was not done to be misleading and was certainly not intentional. He believed it was an honest and reasonable mistake based on what he had been told.
8. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner.
9. In Balle I referred to Kogias v Commissioner of Police [2020] NSWCATAD 297 where the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years.
10. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated, and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery.
11. In this matter, I am not satisfied that there was clear evidence of intent to deceive. I accept that Mr Cook understood that his firearms were seized because of the incident involving his son.
12. I agree with the submission on behalf of the Applicants that their firearms and licences were seized directly as a result of the domestic incident involving their son, in which they were the victims and they were the ones who took appropriate action to contact Police for assistance. I accept that the Applicants were of the belief that the firearms and licences were seized for a period of time, after which, they could retrieve these in accordance with the Police's directions as to how to do so. I was referred to the COPS entry on 8 July 2020, that it is recorded that the Mr and Mrs Cook "were happy to hand over their firearms licences and their firearms to Police for a period of 28 days". This is consistent with their understanding of the Police directions.

Is Mr Cook a "fit and proper person" to hold a firearms licence?

1. Section 11(3)(a) of the Act states that "a licence must not be issued unless the Commissioner (and hence the Tribunal on review) is satisfied that an 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".
2. Section 11(4) of the Act shows the emphasis that has been placed in considering what constitutes a "fit and proper person". In plain terms, where a person's sense of judgment, responsibility and self-control can be compromised, the public's safety is put at risk; public safety is a pillar of the Act.
3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Toohey and Gaudron JJ said at 380: 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.
4. A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at [41]. In the context of firearms licensing, Higgins JM, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], stated that it should be considered whether the person's conduct is such that the applicant can be trusted to have possession of firearms without presenting a danger to the public safety or peace.
5. Mr Cook has no criminal record. I accept that, in the past Mr Cook may have engaged, on two documented occasions in poor conduct, but the information about Mr Cook's past conduct does not lead me to a view that he would use a firearm if provoked. More recently he has come to Police attention - as a victim.
6. Curiously, the Applicants did not provide any character references in support of their application. Mr Cook wrote in his affidavit that he believes that both he and his wife are very well regarded within the Glen Innes community. Mrs Cook, he wrote, has been in Glen Innes almost her whole life and he has been there nearly as long. He has no criminal record and has never been charged with any offence. He believed he has one traffic infringement from when he was 18 years old. His evidence in this regard was unchallenged.
7. I find that Mr Cook is a fit and proper person to be issued with a firearms licence.

Public interest

1. 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 objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
2. I accept the Applicant's evidence that he has had an interest in shooting for many years. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
3. As has been cited many times, 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. Although Ward was also a case on the "fit and proper person" test, the principle in Ward has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
4. 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 "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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74].
5. Further, the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. When considering future risk, the Tribunal must consider the past conduct of the Applicant as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. There was no evidence that Mr Cook has actually at any time taken any steps at any time to engage in self-harm, nor in his 35 years of having a firearms licence to have misused a firearms or failed to comply with his statutory obligations as a licence holder.

Conclusion in relation to Mr Cook

1. In summary, while the Tribunal can never be completely satisfied that there is no risk in an applicant having a firearms licence, in the circumstances I am satisfied that the risk is not sufficiently high that it should prevent Mr Cook from holding the licence. On balance, I do not think the evidence warrants a finding that it would be contrary to the public interest for Mr Cook to hold a firearms licence, and I so find.

Conclusion in relation to Mrs Cook

1. In relation to Mrs Cook, it was clear that the conditions imposed on her licence flowed from the refusal of Mr Cook's licence. Having come to the view that Mr Cook should be granted a firearms licence, the reasons for Mrs Cook's restrictions fall away.

DECISION 1. The decisions under review are 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: 14 July 2021