CXJ v Commissioner of Police

The Applicable Law

1. Section 11(7) of the Firearms Act 1996 prescribes that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Internal Review Reasons

1. The Tribunal summarises the reasons of the internal reviewer as follows. The internal reviewer referred to the underlying principles of the Firearms Act 1996. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
2. The reviewer referred to the material submitted by CXJ's legal representative in support of his request for a review.
3. This material included the fact that CXJ had been acquitted in 2008 of an attempted murder charge. He had not been charged with any matters arising in the COPS events of March 2011 and May 2013. He had obtained a number of licences and had worked with the SES. He had a maritime security identity card. The internal reviewer noted that the purpose of CXJ's applications for a licence was recreational. The internal reviewer referred to the consideration of public interest. In the matter of Cusumano v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 the Tribunal stressed that the discretion about issuing a firearms licence relating to the public interest must be exercised with a preference towards public interest. The Commissioner must be satisfied that it is not against public interest to issue the licence. The Commissioner acknowledged the "not guilty" verdict in 2008. However, the Commissioner also noted that the victim had never wavered in his accusations that CXJ had stabbed him. Further it was a verdict on the "beyond reasonable doubt basis" and civil matters bear a different standard of proof. The public interest required that the Commissioner identify risks to the public and reduce those to a minimum. When police opinion about the outcome of the attempted murder trial is added to CXJ's criminal history, the Commissioner considered that it could not eliminate the potential of public risk.
4. The internal reviewer referred to the matter of Aubrey v Commissioner of Police [2005] NSWADT 266 in which the Tribunal stated that a firearms licence is a private privilege, not a right. The privilege of access to firearms must be weighed against public safety. Where there is a threat to public safety, the public's right to safety must outweigh the individual's desire to exercise the privilege of firearms licensing.

CXJ's Evidence

1. In support of his case, CXJ provided a statutory declaration dated 4 December 2015. In summary, he stated that he had grown up rurally and had used guns for target practice, vermin control or for other farm related tasks. He spends time with his son during school holidays enjoying outdoor activities - including target shooting. It is cheaper to go target shooting if you are licensed. However now that he has been refused a firearms licence, he can no longer target shoot with his son in New South Wales. He could do so in Queensland.
2. CXJ referred to a "COPS event" concerning events on the 27 May 2014. He explained that police had attended his home with an accusation that he had hit EQR with a bar. CXJ says that instead he was being harassed by EQR and he did not hit him with the bar. There were no charges against CXJ arising out of this matter.
3. CXJ referred to a "COPS event" in May 2013. He had been riding his bicycle home from where he stores his work equipment and cars in Artarmon, to his home in Neutral Bay. At the time, he was wearing gloves for hand protection, relevant to his work. He was riding his bike slowly because it was jumping gears and he is also cautious when riding. He was stopped by the police. Contrary to the evidence of Senior Constable Orlovich, he had told the police that he had a criminal history. He was not charged with any matter arising out of this, although he was told he should be wearing a bicycle helmet.
4. CXJ referred to another "COPS event" related to 17 March 2011. There had been a dispute between EQR and another man at accommodation in Neutral Bay. At this time, CXJ was not living at the Neutral Bay property, but he did have a garage there where he undertook work. He had nothing to do with the dispute - he just happened to be there when the police arrived to deal with the matter. The police questioned him at the time. He was not charged with any offence.
5. CXJ referred to his acquittal on an attempt murder charge in 2008. He considered that DST's accusations that he had stabbed him was the result of DST having a vendetta against him. He had been trying to get DST evicted from their property and he had contacted DOCS concerning DST's violence to his partner. He thought that DST had not revealed the true attacker, because the attack was the result of a drug debt owed by DST.
6. CXJ stated that in 2007 he had claimed social security benefits while working as a taxi driver and had been subject to proceedings.
7. CXJ explained that in 2001 he had consented to an AVO taken out by his former partner's father, FNP, after an event in which there had been push and shove in an argument with FNP. Since then, he had had frequent contact with FNP through his former partner and their child.
8. CXJ stated that his criminal history related to his years between the ages of 21 to 28. He had had a difficult upbringing.
9. CXJ also referred to the fact that he has had a number of other licences, such as a taxi and tow truck licence. He had passed a security clearance to obtain a security licence in 2006. From 2007 to 2009 he had worked as a call centre operator for Telstra 000. He had also obtained a contractor licence in 2010, which had involved a criminal history check. He was part of the State Emergency Service volunteers from June 2010 to May 2012. On 7 April 2014, he was issued with a maritime security access card. He is currently licensed for heavy vehicles, as a machine operator and scaffolder.
10. Under cross-examination, CXJ was firm in denying that he had stabbed DST or attempted to murder him. He said that he had dropped DST off in town on the relevant morning, as he was always happy to have DST off the premises. He agreed that he had bought a can of bourbon at 9:34 AM. When stopped, he had told the relevant police that he had been "finishing some work". When the police told him that there had been a serious incident, he was not concerned, as it did not relate to him. When he was visited at 3:30 PM on the same day by Detective Senior Constable Browne who told him that there had been a serious incident and had asked CXJ about DST's movements, CXJ said that he had not told the police that he had dropped DST off in town that morning as he did not wish to be involved in anything to do with DST, or the police. Further, the police were often looking for DST.
11. He was asked whether he thought it was important to assist the police. He told the Tribunal that he thought he had done what was required. He hadn't thought that it was that important. He told the police that after dropping off DST and buying a can of bourbon, he had gone home to do some work and had kept his 10 AM appointment with the Department of Housing.

Reference from AYZ

1. CXJ provided a written reference from his former partner AYZ, the mother of CXJ's son. The reference was in identical terms to a reference previously provided by AYZ. It referred favourably to CXJ's activities as a father. It did not express a view about CXJ's suitability to hold a firearms licence.

Summary of the Applicant's written submissions

1. The Applicant provided the Tribunal with written submissions. The Tribunal summarises those submissions as follows.
2. In relation to the Applicant's criminal record the Applicant referred to the matter of the Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], as authority for the principle that the absence of any additional adverse information in relation to an Applicant's criminal record over a period of time is a relevant matter when considering the public interest. If the person has maintained a clean record since the last time the matter was reviewed, this should count in their favour. It was also desirable for the Tribunal not to subvert the earlier decision of the criminal court in finding CXJ not guilty of three offences. See Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [26]
3. The question for the Tribunal is: 1. whether or not it was in the public interest for the Applicant to be granted a firearms licence; and 2. was the correct and preferable decision to affirm vary or set aside the Respondent's decision.
4. The civil standard of proof on the balance of probabilities applied - see Hardy v Commissioner of Police [2006] NSW ADT 167 at [17]). The standard of proof was that set out in Briginshaw v Briginshaw (1938) 60 CLR 360. The Tribunal must feel an "actual persuasion" when considering the matter of the Applicant's guilt in relation to the attack on DST.
5. The Applicant, CXJ, submitted that the Tribunal should place no weight on the alleged stabbing by CXJ, because of the inherent unlikelihood of the incident and the inconsistency in DST's evidence. There was no logic, rhyme or reason for the Applicant to have committed this offence. There was no blood found on the Applicant. No knife was found. The Applicant's interactions with the police after the event were inconsistent with guilt. No mud had been observed on his car. DST had not referred to CXJ immediately after the stabbing as having been his attacker. When pulled over by the police on the morning of the offence, CXJ had been observed to be calm and collected by the police concerned. CXJ had made a negative assessment to police about DST when they came to interview him at his home about the incident. He had stated "DST - he is the one that brings about all the shit round here." This was inconsistent with CXJ concealing guilt. CXJ denied owing DST or DST's partner, any money.
6. CXJ's version of the events on 27 July 2006 were that he had dropped DST off in town around 9 o'clock. He had returned home within 10 minutes. He had worked at home and had then gone to the IGA to buy a can of bourbon. He was then questioned by the police.
7. The DNA evidence in the trial was of no assistance to the Respondent in establishing CXJ stabbed DST. DST had been bleeding heavily after the incident, however, there was only a small amount of blood in CXJ's car.
8. There was significant inconsistency in DST's account of the stabbing. His descriptions of the knife had changed over time. At first, he said there had been no discussion when parked in the car with CXJ and then he had later said that CXJ had asked him to do an insurance job on his car. He had provided an account of waiting for the Westpac bank to open for CXJ to provide him with money. However, CXJ did not bank at Westpac bank. He had been inconsistent about what type of mobile telephone he owned. It was also unlikely that he had been able to lend money to CXJ, as DST had a significant drug habit and would not have had money available to lend. DST had a motive to accuse CXJ of the stabbing. CXJ had intervened in DST's domestic violence against his partner; CXJ had been dealing with the Department of Housing to evict DST. Further, DST may have had fear of the real attacker. The jury had acquitted CXJ of the three charges. In these circumstances the Tribunal could not feel an "actual persuasion" of his guilt.
9. In relation to the other matters that had been alleged against CXJ, the police had taken no action against CXJ in relation to the alleged assaults on EQR. These matters could not be relied upon. The apprehended violence order in 2001 had been a matter of consent without admissions. It was at the lower end of the scale.
10. The Applicant submitted that the 2007 conviction in relation to social security matters had been minor and all the monies had been paid back. He had been honest about this matter in lodging his application. It was of no relevance to whether he should now have a firearms licence.
11. All of the Applicant's other convictions were 20 years ago. Since that time, he had taken steps to turn his life around. He was a loving and supportive father. He had worked for Telstra 000. He had obtained a contractor's licence in 2010. He had been an SES volunteer between June 2010 and May 2012. He now volunteers with marine rescue.
12. The public would not be put at risk were he to be licensed. This was not a matter in which he had ever breached firearms licensing conditions in the past. The concerns expressed by Detective Senior Constable Christopher Browne which had been the basis for the internal review decision, were irrelevant. They were suspicions and not factual matters. The Tribunal should consider factual matters and not police suspicions.
13. The Applicant submitted that it was open to the Tribunal to impose conditions upon the Applicant's firearms licensing. He could use and store any firearm at St Mary's indoor shooting Centre. The Applicant submitted that the assessment of risk to the public should be based on real facts and not on suspicions.

The Respondent's Case

1. The Respondent relied on the content of the section 58 documents. Detective Senior Constable Orlovich gave evidence. DST gave evidence by video.

Evidence of Detective Senior Constable Orlovich

1. Detective Senior Constable Orlovich gave evidence of having stopped CXJ as he was riding his bike in the Artarmon area. He was wearing gloves and riding slowly. When Detective Senior Constable Orlovich asked CXJ if he had a criminal record, CXJ denied that he did. Detective Senior Constable Orlovich noted that CXJ had been riding his bike without a helmet. He said that no further action had been taken against CXJ.

Evidence of DST

1. DST gave evidence by videoconference link from Goulburn courthouse. He told the Tribunal when his criminal record was put to him, that he couldn't really confirm elements of it, as he could not necessarily recall them. He did not recall the date he was stabbed. He told the Tribunal that he had frontal lobe damage. He maintained that it was CXJ who had stabbed him. Prior to stabbing him, CXJ had asked him to do an insurance job for him. His most recent conviction had been for driving a vehicle under the influence of illicit drugs in Goulburn in September 2015.

The Respondent's Submissions

1. The Respondent provided written submissions.
2. The Respondent relied on the section 58 documents. These included: 1. the Applicant's criminal history; 2. DSC Christopher Browne's investigation into the stabbing of DST and the statements of witnesses. 3. the COPS event record of May 2013 from DSC Orlovich and his statement ; 4. the refusal of a security licence to CXJ in January 2016; 5. DST's statement of 3 March 2016 6. documents in relation to CXJ's conviction for social security fraud in 2007 7. the COPS record and the AVO in October 2001.
3. The Respondent submitted that the Tribunal's role was to reconsider all of the material and to consider the new matters put before the Tribunal. There was no onus of proof. See Hardy v The Commissioner of Police, NSW Police [2006] NSWADT 167

Public Interest Test

1. The Respondent referred to the principle that a firearms licence is a privilege not a right. The power to grant a firearms licence is tightly constrained as is the unfettered nature of the concept of public interest. The Respondent referred to the Commissioner of Police v Toleafoa [1999] NSWADTAP 9 as stating that the public interest is an inherently broad concept. The interest of the public must be preferred to the private interest of the individual - see Director of Public Prosecutions v Smith [1991] 1 VR 63

The public interest considerations in the matter

1. The Applicant's past conduct and his criminal history were highly relevant considerations to consideration of public interest. See Sobey v Commercial Agents Board [1979] 22 SASR 70 at 75 and Bazouni and others v the Commissioner of Police [2002] NSW ADT 100 at [21]

Public interest

1. It was therefore not in the public interest for CXJ to be given a firearms licence.
2. CXJ had a lengthy criminal history over a significant period of time. He had a number of traffic infringements over a significant period of time and he had been involved in a number of altercations and disputes. This picture ought to create a degree of uncomfortableness in the Tribunal, such that it should not issue a firearms licence to CXJ.
3. CXJ's criminal history as presented had not been contested by him. There are a number of significant offences, including offences of dishonesty from 1989 to 2007 - a period of 18 years. While it was true that CXJ had no convictions recorded since 2007, this in itself did not demonstrate a reformation of his character. See Ex parte Tziniolis ; Re The Medical Practitioners Act (1966) 67 SR(NSW) 448 and Lee v Health Care Complaints Commission [2012] NSWCA at [72] to [73]. In Lee, the Court of Appeal had stated that the mere passage of time does not prove a reformation of character. It was necessary to provide an explanation as to why misconduct would not re-occur or why someone had become a changed person. CXJ had not provided this.
4. The Respondent referred to CXJ's offences as an adult and his poor driving record. The Respondent referred to Tannous v Commissioner of Police [2011] NSWADT 116. CXJ's criminal record as an adult and his poor driving record demonstrated a lack of consideration for public safety. Public safety is at the heart of firearms legislation and the discretion to provide a firearms licence.
5. Further, there had been allegations of the Applicant engaging in violent conduct in 2001. He had threatened to burn the house down to his former partner AYZ. He had been engaged in push and shove with his father-in-law, leading to an apprehended violence order in 2001.
6. In 2011, at the age of 42, he had allegedly been involved in fighting with EQR. In 2013 as a 44-year-old, he had been stopped by police not wearing a helmet and had told the police that he did not have a criminal record. Again in 2014, when CXJ was 45 years old, the police were called and he was alleged to have been engaged in fighting with EQR.
7. To this should be added the events of 27 July 2006 - the stabbing of DST. The Respondent pressed that the Tribunal should make a finding on the balance of probabilities that CXJ had stabbed DST. Contrary to the Applicant's submissions, there was coherence in DST's story. In addition, the Applicant had failed to reveal to the police when they visited his home at 3:30 PM on that day, that he had given a lift to DST when it was a relevant piece of information. There were also unsatisfactory aspects of the Applicant's account of his movements between 9 and 10 AM on the day that DST was stabbed.
8. The Respondent pressed that all of these matters suggested that it was not in the public interest for CXJ to be granted a firearms licence.

Legal Framework

1. Section 11(7) of the Firearms Act 1996 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. Pursuant to s75(l)(a), the Tribunal has jurisdiction to hear and determine an application for administrative review under the Administrative Decisions Review Act 1997 in relation to the refusal of the Respondent to issue a firearms licence.
3. The Tribunal's function in relation to applications before it is set out in s. 63 of the Administrative Decisions Review Act 1997:

Section 63 Determination of administrative review by the Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) ……….. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. The Tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. In conducting its review, there is no presumption that the Respondent's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 358, 357.

Public Interest

1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 ("Toleafoa"), at [24] the Appeal Panel held: "... public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals. The "public interest" is an inherently broad concept giving the appellant 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 elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal... "

The Tribunal's finding of facts

1. Based on the evidence before it the Tribunal finds the following matters of fact. CXJ has a criminal history as set out in the Respondent's submissions. The criminal history commences in 1989 and finishes in 2007.
2. CXJ has a significant motor traffic offences history.
3. CXJ is alleged to have been involved in two incidents of violence with EQR, but he has not been charged with offences in relation either of these matters.
4. On CXJ's own admission, there was an incident in October 2001, involving pushing and shoving with his previous partner's father. This resulted in the apprehended violence order consented to by CXJ.
5. The Tribunal makes no new findings about the alleged stabbing of DST by CXJ in 2006. Despite the Respondent again pressing CXJ's guilt, the Tribunal is satisfied that it cannot rely on DST's evidence taken before the Tribunal. DST himself told the Tribunal that he was unable to remember when the stabbing occurred and that he had frontal lobe damage. The Tribunal was not presented with the transcript of the evidence before the criminal proceedings.
6. The Tribunal is not satisfied on the civil standard of proof as set out in section 140 of the Evidence Act 1995, that CXJ is guilty of stabbing DST.

Reformation of character

1. CXJ has referred to a reformation of character. He has relied upon the lack of criminal convictions since 2007 and placed the majority of his criminal convictions as being part of his youth.
2. CXJ referred to his holding of licences and certifications and employment on the 000 line, volunteering with marine rescue and the SES. He says he does not socialise and now focuses on family.
3. CXJ has had no convictions recorded since 2007. This is one part of demonstrating a reformation of character. In Lee v Health Care Complaints Commission [2012] NSWCA at [72] to [73] the Court of Appeal stated that the mere passage of time does not prove a reformation of character. In support of his contention that he had reformed, it would have been of assistance to the Tribunal for CXJ to provide an explanation as to why his past criminal behaviour would not re-occur, or why he had become a changed person. Corroboration of a third party, referring to his application for a firearms licence, might also have been more persuasive.
4. The Tribunal does find that CXJ demonstrated a lack candour in his interactions with the police investigating DST's stabbing in 2006. CXJ did not initially tell the police that he had given DST a lift to town. CXJ told the Tribunal in relation to providing information to the police "I told them what was necessary."
5. This approach is problematic as far as the privilege of firearms licensing is concerned. It is insufficient to be evasive in telling the truth. The Tribunal would expect a firearms licensee to demonstrate a greater degree of disclosure and cooperation when questioned by the police in relation to a serious matter. CXJ had an opportunity in his evidence before this Tribunal to indicate that he might now behave differently were he involved in police investigations of a serious matter. However, he did not.
6. CXJ has a criminal history spanning over a range of time. He has a number of traffic infringements and an involvement in altercations with others. This provides an impression that conformity with regulation promoting public safety and considering the public interest, have not been a priority for him. This is inconsistent with the expectations of a firearms licensee as set out in the objects and provisions of the Firearms Act 1996.
7. The Tribunal finds that it is not in the public interest for CXJ to have a firearms licence.

Decision

1. The decision of the Respondent to refuse CXJ a firearms licence, is affirmed.
2. The Tribunal makes an order under section 64(1)(a) of the Civil and Administrative Tribunal Act, 2013, prohibiting the publication of names used in the Tribunal's Reasons for Decision, other than as initials. 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: 25 January 2017