Cseszko v Commissioner of Police, NSW Police Force

Legislation

1. Section 24 of the Act provides for the revocation of licences in a range of circumstances, including where the licensee contravenes:

• any provision of the Act or the Firearms Regulation 2006 ("the Regulation"), whether or not the licensee has been convicted of an offence for the contravention;
• any condition of the licence.

1. The Respondent exercised its power under section 24(2) of the Act.
2. The Tribunal has jurisdiction to review the Respondent's decision pursuant to section 75(1) (c) of the Act and section 30 of the Civil and Administrative Tribunal Act 2013.
3. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. See Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.
4. The underlying principles of the Act are, relevantly:

• to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety; and
• 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.

1. Section 11(3)(a) of the Act provides that the Commissioner may issue a licence to a person who applies for one, but must not do so unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(7) provides that Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
2. A licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind (section 24(2)(a)), or if the licensee contravenes any provision of the Act or the regulations, or contravenes any condition of the licence (section 24(2)(b)(ii) or (iii)).
3. Section 24(2)(d) of the Act prescribes that a licence may be revoked for any other reason prescribed by the Regulation. This includes where the Commissioner (or on review, the Tribunal) is satisfied that it is not in the public interest for the licensee to continue to hold the licence. (clause 19 of the Regulation)

Fit and Proper

1. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper "cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "
2. In the same case, Mason CJ stated at [63] that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
3. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."
4. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": "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 evolving 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."
5. The Applicant's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.
6. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. "22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace."

The public interest

1. Section 24(2) (d) of the Act prescribes that a licence may be revoked for a reason prescribed by the Regulation. Clause 19 of the Regulation allows the Commissioner of Police to revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence. Accordingly section 24 (2) (d) of the Act and Clause 19 of the Regulation work together to provide authority for the revocation of a licence where the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
2. The concept of "public interest" was discussed by the Administrative Decisions Tribunal (NSW) ("the ADT") in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as follows: The "public interest" is an inherently broad concept giving an appellant [the Respondent] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
3. The circumstances in Toleafoa related to the revocation of a security licence under the Security Industry Act 1997 (NSW). In Ward v Commissioner of Police [2000] NSWADT 28, the ADT confirmed that these comments apply equally to the Act.
4. In Cusumano v Commissioner of Police [2001] NSWADT 50, the ADT stated: There is no guidance in the legislation in relation to how these directions [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.
5. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act, namely, to confirm firearm possession and use as a privilege conditional upon the overriding need to ensure public safety.
6. In Ward v Commissioner of Police the ADT's Deputy President Hennessy considered the fitness and propriety of Mr Ward to hold a firearms licence. The Deputy President stated at paragraphs [27 - 28]: "27 ...The question for the Tribunal is whether, based on all the evidence, it would have confidence that [the Applicant] 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."
7. The principal issue in determining public safety is therefore whether or not there is a risk to the safety of the public if the Applicant retains the relevant licence: Vella v Commissioner of Police [2003] NSWADT 91.
8. In considering risk to public safety, the ADT recognised that it must be satisfied that a person would not pose a risk to public safety if they had access to firearms.

Issues for the Tribunal

1. The issues for the Tribunal to determine are whether the Applicant is a fit and proper person to hold a fire arms licence and whether it is against the public interest for him to hold the licence.

Material before the Tribunal

1. The Respondent has filed a bundle of material pursuant to section 58 of the Administrative Decisions Review Act 1997. This bundle contains the material taken into account in making the determination and includes details of the charges brought against the Applicant, a record of the incidents which brought the Applicant to the attention of Police, an internal Police briefing concerning the alleged air rifle incident, statements from the Applicant's ex-wife and her current partner and the email dated 23rd January 2015 that the Applicant wrote to his ex-wife. A map of the location of the property where the alleged air rifle incident is said to have occurred is also included.
2. The Respondent relies on two statements - that of Constable Holly Carter made on 21 October 2015; and that of Senior Constable Grinter, made on 25 November 2015. Neither officer was required for cross examination.
3. The Respondent also relies on a video of a digitally recorded interview between Police officers and the Applicant's 7 year old son. This video was shown during the hearing.
4. The Applicant relies on two affidavits. The first was sworn on 10 November 2015 and the other on 25 January 2016.
5. Neither party called witnesses at the Hearing. Each of the parties made both written and oral submissions.

The Respondent's case

1. The Respondent contends that the Applicant is not a fit and proper person to continue to hold a firearms licence; and that it is not in the public interest for him to continue to hold a licence.
2. The Respondent submits that there are several grounds to justify the revocation of the Applicant's firearm's licence, although each reason by itself justifies revocation.
3. The air rifle is owned and registered to Mr Andrew Finch. The Applicant says that he collected the air rifle from Mr Finch to repair it.
4. The Respondent contends that the Applicant contravened the Act in allowing his seven year old son to shoot an air rifle in a residential area. Further, it is alleged that the Applicant also contravened the Act by attempting to repair Mr Finch's air rifle as he is not licensed to perform repair work on firearms. The Applicant further contravened the Act when he did not inform the Firearms Registry of a change of his residential address.
5. The Respondent submits that the Applicant, by his actions, demonstrated a poor attitude in relation to the principles and objects of the Act, as well as a disregard for public safety. It says that his behaviour is such that the Tribunal cannot be satisfied that there is virtually no risk to public safety in allowing him to hold a licence.
6. It refers to the Applicants background and in particular the fact that he was previously found guilty of a number of firearms offences and that he has been charged with a number of offences since that time.
7. The Respondent relies most significantly on the allegation that in January 2015, when the Applicant and his seven year old son visited the Applicant's parents' in Wagga Wagga, the Applicant allowed his son to handle and fire an air rifle. The Respondent relies on a map of the area to show that the Applicant's parent's property is located in the town of Wagga Wagga. This property is a suburban block, in close proximity, to other houses.
8. The Applicant's son gave a recorded interview to Police in October 2015. In that interview, he said that he saw his father and grandfather with an air rifle in the backyard, that he joined them and shot the air rifle at a cardboard box and a plant box a few times. He said that they had to get up a bit early so that the neighbours couldn't hear it. He said that when he shot the air rifle the Applicant was standing next to him, with his grandfather assisting him. He indicated that he shot the air rifle about 8 or 10 times. He described the event, including a description of the air rifle, the air rifle pellets and the targets he shot at.
9. He was not sure whether it was his father or his grandfather who took the air rifle off him when he had finished shooting it. He thought that the air rifle was stored in the garage when they finished shooting it and then it was returned to its owner - Mr Finch.
10. The Applicant's son indicated that he fired the air rifle on two consecutive days. The first time was with his father and grandfather and the second time was with his grandfather on the following day, after the Applicant had left the grandparents' property. However, in her affidavit Senior Constable Grinter stated that Mr Finch had informed her that he had given an air rifle to the Applicant to borrow, but that it was for "just the morning, half a day at the most".
11. There is clearly a conflict between these two versions of the incident. The Respondent contends that in any event, the evidence is clear that the Applicant allowed his son to shoot and handle the air rifle.
12. The Respondent points to the fact that in January 2015, shortly after the Applicant's son returned home from his visit with his grandparents in Wagga Wagga, the Applicant's ex-wife reported to police that the Applicant's son had told her that he had shot an air rifle with the Applicant and his grandfather.
13. The Respondent points to the email exchange between the Applicant and his ex-wife in which the Applicant admitted that his son had shot the air rifle. It argues that the email was a contemporaneous note of what had occurred and that the Tribunal should prefer this account to the denial provided by the Applicant in his statement of 26 January 2016.
14. In her Statement, Senior Constable Grinter said that she attended the Applicant parents' premises in March 2015 but that the Applicant's parents declined to make a statement. She stated that when she asked the Applicant's father whether he had any knowledge of the Applicant's son shooting an air rifle when he visited in January 2015, his immediate response was that it did not occur. The Applicant declined to be interviewed on the basis of legal advice he had received.
15. The Respondent submits that the firearms legislation imposes a strict regime in order for a person to obtain a firearms licence. Further, the Act provides for licensees who possess firearms to take reasonable precautions in relation to the safe keeping of firearms within his or her possession and to take all reasonable precautions to ensure that it does not come into the possession of a person who is not authorised to possess the firearm. The Respondent submits that the Applicant contravened the Act by allowing his son - a person who is "not authorised to possess a firearm" - to possess and fire the air rifle.
16. The Respondent further submits that one of the underlying principles of the Act is ensuring public safety. The Act clearly does not envisage that firearms will be fired in residential areas. The Applicant's Category AB licence permitted him to shoot at an approved shooting range for sport/target shooting and on rural land for recreational hunting/vermin control. It says that in shooting and allowing his son to shoot the air rifle, at his parent's residential property in Wagga Wagga, the Applicant showed a blatant disregard for public safety and a lack of foresight of the risk of unintentional harm to members of the public.
17. The Respondent further submits that it is unclear as to what, if any, safe storage arrangements the Applicant had in place for the storage of the air rifle for the period during which it was in his possession. The Respondent submits that the Applicant has not demonstrated that he has complied with his safe storage obligations.
18. The Respondent notes the Applicant's statement that he was in possession of the air rifle for repair and that he was unable to repair it and returned it to its owner in its inoperable condition. In regard to that evidence the Respondent submits that only Firearms Dealer licence holders are authorised to repair a firearm and that the Applicant does not hold a Firearms Dealer licence.
19. The Respondent further submits that the Applicant contravened section 69 of the Act - the requirement to notify the Firearms Registry of a change of address - when he moved in March 2015. The Respondent submits that the Applicant's actions demonstrate a lax attitude in relation to his firearms licence and the responsibilities and obligations which the firearms legislation imparts on every licence holder.

The Applicant's case

1. The Applicant relies on his own evidence. His evidence is that he has served in the Army Reserve, Royal Australian Army, and has worked in armed security in both Australia and for a period of seven years in Iraq. In both the armed forces and when in security, the Appellant undertook regular weapons safety training and skills. In Iraq he was a team leader and responsible for training his team in weapons safety, weapons firing and skills. In addition to training local forces he was required to undertake weekly firearms training and two times per month live weapons training on the range. He said that as a result of his training he would not allow a child to handle or fire a firearm.
2. He points to the Respondent's reliance on his prior history, the uncorroborated statement of his son, and emails between himself and his ex-wife.
3. He notes that the proceedings in the Liverpool District Court in June 1997 were dismissed pursuant to the provisions of section 556A and that no conviction was recorded. In relation to Assault and Apprehended Violence proceedings in May 2005 he noted that the alleged victim retracted her statements and the charges and application for Apprehended Violence Order were withdrawn and dismissed. The Applicant stresses that he has no criminal convictions and that the material on which the Respondent relies is of no probative value and merely prejudicial.
4. He further submits that the uncorroborated statement of his son is not admissible at law.
5. In his Affidavit of 10 November 2015 he denied the allegations in relation to the air rifle. He denied letting his son hold or fire an air rifle and stated that at no time did his son handle or fire the air rifle. He stated that the story told by his son was a result of his excitement and imagination and that he had told his son stories of firing an air rifle when he was a boy.
6. He said that on the morning after arriving in Wagga Wagga he went to see Mr Finch. He said that Mr Finch had a problem with his air rifle and he had asked the Applicant to have a look at it. He took the air rifle to the garage at his parents' residence and started to dismantle it. When his son came into the garage and asked him what it was. He told his son it was an air rifle and showed him how the rifle cocked and described the noise it made when fired. He said that he had no pellets for the air rifle. He said that when he began working on the air rifle it would not cock properly. There was a problem with the mainspring and the trigger mechanism. He was unable to repair the air rifle and it was returned to Mr Finch still inoperative.
7. In relation to the email exchange between himself and his ex-wife, the Applicant said that his relationship with his ex-wife has been acrimonious since 2008, with continuing proceedings in the Family Court in relation to care and control of their son and the Applicant's contact with him. He said that when she contacted him he dictated a quick letter to his new partner who forwarded it immediately upon completion. He said that the email was a knee jerk reaction in an endeavour to goad his ex-wife.
8. In his Affidavit of 26 January 2016 he said that he admits that the emails were sent, however, he stated that their contents were false. He said that he was being spiteful as there was an ongoing dispute between him and his ex-wife and that he knew the contents of the emails would upset her.
9. In addition to wishing to retain his licence for the reasons of Target Shooting and Recreational Hunting Vermin control he stated that he would like to have the opportunity to return to the security industry as it has more regular hours and stable income to enable him to provide greater assistance to his family. He believes that the licence would assist him in that endeavour.

Discussion

1. In my view, the evidence in regard to the alleged firing of the air rifle is inconclusive. The interview between the police officers and the Applicant's son shows the son to be an intelligent, articulate boy. However, I am unable to ascertain whether he also has a vivid imagination and whether the details that he gave of the alleged incident are the result of the exercise of that imagination.
2. The Respondent's material in relation to that issue is largely based on the truth of the Applicant's son's story. The statements of the Applicant's ex-wife and her current partner relate what the Applicant's son had told them. Similarly, the police briefing is based on what the Applicant's son had said. However, this is supported by the Applicant's admission in the email between himself and his ex-wife.
3. In contrast is the explanation for the email provided by the Applicant and the denial contained in his affidavits. He stated that the air rifle was inoperative and that he only had it for a short time. This is supported by the statement of Senior Constable Grinter in which she noted that Mr Finch had told her that he had only left the air rifle with the Applicant for less than half a day. She also said that the Applicant's father had denied that the Applicant's son had shot the air rifle.
4. In the circumstances it is my view that it is possible that the Applicant's son had shot the air rifle but I cannot be satisfied that he probably shot it.
5. That being the case, I am not satisfied that the Applicant has contravened the Act by allowing his son - a person who is "not authorised to possess a firearm" - to possess and fire the air rifle.
6. However, on the material that I have before me I am satisfied that the Applicant has conceded a rather casual attitude towards the handling of the air rifle in his son's presence and there is reasonable doubt as to the manner in which it was stored while it was at his parent's property.
7. On the basis of the Applicant's own evidence, I am also satisfied that he attempted to repair the air rifle in circumstances where he does not hold a Firearms Dealer licence. Further, I am satisfied that the Applicant failed to notify the Firearms Registry of a change of address as required by section 69 of the Act.
8. I do not agree that these actions warrant the revocation of the Applicant's firearms licence however they do warrant some action to be taken in relation to the licence.
9. As noted above, the concept of fitness and propriety has been said to have three components - honesty, knowledge and ability. In my view, the Applicant has demonstrated that he is somewhat lacking in his knowledge of the obligations placed on a licence holder under the Act. I consider that he would benefit from a refresher course in regard to those obligations.
10. I note that the licence is due to expire on to expire in August 2016 and that the Applicant has already been without the licence since it was suspended on 28 January 2015. In the circumstances, it is my view that the appropriate outcome is to suspend the licence for a period of 6 months from the date of these reasons and to require the Applicant to undertake training before the licence is returned.

Order

1. The decision under review is set aside.
2. The decision is made that the Applicants category AB licence is suspended for a period of six months from the date of this decision 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 March 2016