D'Ambros v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2023-11-15|Before: Health J

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to refuse the applicant's Category ABGH Firearms licence application on 28 March 2023 and the decision on Internal Review on 31 May 2023 to affirm that decision.

Introduction

The applicant in these proceedings is Mr Franco D'Ambros (Mr D'Ambros). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner's delegate on internal review formed the view that it was not in the public interest for Mr D'Ambros to hold a Firearms Licence.
The relevant history of the matters between the Commissioner and Mr D'Ambros commence with the suspension of his firearms licence on 29 January 2021 following serious charges and the identification of a prohibited weapon (slingshot crossbow) at his residence. Whilst seizing his firearms following the serving of the suspension notice police located an unregistered firearm with Mr D'Ambros's firearms. A Firearms and Weapons Prohibition Order issued on 2 April 2021 which resulted in the Firearm's Licence being revoked on 30 April 2021.
Following an Internal Review the Firearms and Weapons Prohibition Order was revoked on 23 August 2022. Rather than seek to have the revocation of the existing Category AB Firearms Licence set aside by way of an Internal Review, Mr D'Ambros applied on 23 September 2022 for a fresh Firearm's Licence adding the Categories of 'GH" to the AB licence adding pistol (and collector) to the type of firearms to be held under the licence. It was this application that set off the two considerations by the Commissioner's delegates that arrive at the current matter before the Tribunal.

Background

Mr D'Ambros has been engaged in the firearms licensing regime since 1998 and until his licence was suspended in January 2021 he was continually licenced to possess and use firearms during that period.
On Internal Review the Commissioner's delegate upheld the original decision to revoke the licence. The reviewer made a number of material findings of fact against Mr D'Ambros concerning his behaviour in recent years. Charges relating to taking and detaining a person in company to obtain advantage were issued in December 2020. On 29 January 2021 a prohibited weapon (high powered slingshot crossbow) was seized by Police. A Notice of Suspension was issue on 29 September 2021 and firearms seized as result of that suspension. During the seizure of registered firearms an unregistered firearm was located with Mr D'Ambros's firearms.
Whilst these matters did not result in any adverse Court outcomes and the Firearms and Weapons Prohibition order was set aside on separate Internal Review, the delegate found that with his level of firearms licencing experience, Mr D'Ambros should have been more aware of his responsibilities and obligations from a legal and compliance perspective.
The delegate placed weight on the apparent breaches of the Firearms Regulations irrespective of any formal charges or Court outcomes. The delegate noted that the apparent breaches were prescribed offences under the Firearms Licencing legislative regime and had Court findings been made Mr D'Ambros would have been barred from holding a Firearms licence for 10 years.
The delegate (in noting the different criminal standard to the civil standard which they were applying), observed that they were examining reported conduct. Their decision was based on findings about Mr D'Ambros's reported behaviour that gave rise to the charges and associated matters rather than any finding of guilt.
The delegate determined that Mr D'Ambros's conduct involving the serous criminal charge involving removing a minor from their legal Guardian, and taking matters into his own hands rather than seeking assistance of authorities, as well as the matter of the possession of a prohibited weapon and an unregistered firearm, demonstrated a lack of judgement.
For those reasons the delegate affirmed the original decision thereby determining that it was not in the public interest for Mr D'Ambros to hold a firearms licence.
The Tribunal noted in the initial aspect of the hearing that the decision under review concerns an application for a Category ABGH Licence. Category H relates to pistols (as observed at [4] above). Category G relates to a collector's licence. The Commissioner advised the Tribunal that a Collector's licence was not reviewable by way of Internal Review because the application was concerning a refusal to issue a new licence rather than renew an existing licence, even if the existing licence still had time to run at the relevant time of the reapplication.

Jurisdiction

The Commissioner had refused Mr D'Ambros's Firearms Licence application on the basis of s 11 (7) of the Firearms Act 1996 which provides: 11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (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 (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (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. (5) A licence must not be issued to a person who - (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to one of the following in relation to an offence prescribed by the regulations - (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000. (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that - (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) 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. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence. (emphasis added)
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns the refusal of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b).. (c) ... (d).. (e)… (f)… (g)…
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (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) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (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.
The Tribunal has jurisdiction under the Firearms Act as noted at [16] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

The application for administrative review was filed with the Tribunal on 26 June 2023. As the decision on Internal review is dated 31 May 2023 the parties agree that the application to the Tribunal has been lodged within the time provided for making an administrative review application to the Tribunal (28 days).

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioners delegate:

Is it in the public interest for the applicant to hold a licence? In reaching this position the Tribunal will also be required to determine whether on the available evidence Mr D'Ambros is a fit and proper person to hold the licence and as such whether it is in the public interest for him to again be issued with a licence.

This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

Exhibit 'A-1': Statement of F Mr D'Ambros dated 3 September 2023.
Exhibit 'A-2': Photographs / Illustrations of RS-X7 Slingshot Crossbow and associated items.
Exhibit 'A-3': Statement of R Lemonakis dated 4 September 2023 attaching Constitution and By Laws of Sydney Colonial Muzzle Loading Club (53 pages).

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act filed 25 July 2023 (155 pages).
Exhibit 'R-2' Supplementary Bundle of s 58 documents filed 21 August 2023 (123 pages).
Exhibit 'R-3' USB Key containing digital versions of messenger service messages, text messages 'WhatsApp conversation. This Exhibit was supplemented during the hearing of the proceedings by paper based versions of the data - received as 'MFI - R1', 'MFI -R2' and 'MFI - R3'.

Both sides were legally represented and provided written submissions and made oral submissions at hearing. Mr D'Ambros was subject to cross-examination at hearing.
It is necessary to briefly outline one of the events which was central to the Commissioner's decision so that the following evidence can be properly understood.
Mr D'Ambros had formed a friendship with a 'Ms A' who was one of his customers. That developed into an intimate relationship and the time of the beginning and end of that relationship was a matter of some dispute between the parties to these proceedings. 'Ms A' had a daughter of primary school age. Mr D'Ambros understood that 'Ms A' was going through Family Court proceedings concerning the relationship with the daughter's father 'Mr S'. 'Ms A' had minimal access to the daughter as 'Mr S' had custody. However (on Mr D'Ambros's version) in late October 2020 'Ms A' advised that she was going away with her daughter and had obtained favourable orders from the Court concerning changes to custody arrangements. Police sought assistance form Mr D'Ambros but his assistance was minimal. 'Ms A' was believed to be in Queensland with her daughter, by this time in breach of Family Court Orders re: the child's return to her father due on 20 October 2020.A recovery order was issued for the child on 5 November 2020. The child was subsequently recovered from Mullumbimby on 27 November 2020. This matter was referred to as the 1st abduction and resulted in charges to Mr D'Ambros and others.
'Ms A' and a man identified by the name 'Kjoora' met with Mr D'Ambros and travelled to the daughter's primary school to collect her from school on 1 December 2020. This matter was captured by smartphone video and received by the Tribunal (exhibit 'R-3'). The man 'Kjoora' was introduced to Mr D'Ambros by Ms A' and held the various legal documents which were shown to the teachers as authority for removing the child from school. It is this matter, whereby 'Ms A', 'Kjoora' and Mr D'Ambros (and others who accompanied the party and whose knowledge of what was occurring was unclear) left from the School with the child, that brought about Mr D'Ambros's most serious charge concerning taking and detaining person in company to obtain advantage and take detain child with intention to remove from parental control. This matter was referred to as the 2nd abduction.

Mr D'Ambros's evidence at hearing

In evidence in chief Mr D'Ambros adopted his statement (Exhibit A-1). He said that he recalled his November 2020 interactions with Police. Mr D'Ambros sought to correct a reference in [17] of his statement in that he says now he met with Police in the carport of the premises on 15 November 2020 not inside the house.
In respect of the person who accompanied the mother of the child to the primary school with Mr D'Ambros, the person referred to as 'Kjoora', Mr D'Ambros believed that they were a 'public officer' and had some authority possessing the Commonwealth Court documents in respect of custody of the child.
In respect of his relationship with 'Ms A' Mr D'Ambros said that it was initially an intimate relationship and then it became just a business relationship.
In cross-examination Mr D'Ambros was asked about his assets. He said that he owned a house and a factory. His occupation was described as 'manager of Refurbishment Group which involved a pressure cleaning business. He previously worked in the smash repair business.
Mr D'Ambros said that he first met 'Ms A' in March 2019. He agreed that he had attended her Family Court custody hearing in December 2019 and attended four of the five days of that hearing (being absent on the Tuesday). He said that after the hearing he accompanied 'Ms A' to collect her daughter from the father, take her to school etc. He said that sometimes he was at 'Ms A's home when she was with her daughter and he went on trips with them to areas outside of Sydney. He said that they went on 'a couple of trips.'
Mr D'Ambros said that the relationship as broken off in October 2020 while 'Ms A' was away. It was put to Mr D'Ambros that this evidence was false and that he had maintained a close relationship with 'Ms A' during the months of October, November and December 2020.
Mr D'Ambros said that 'Ms A' had told him that she was going away on 31 October 2020. He agreed with the proposition that he had not asked 'Ms A;' where she was going but said that she always went north (of Sydney). Mr D'Ambros contends that he spoke to 'Ms A' on 23 October 2020 and 31 October 2020 (at 4:30am). He messaged 'Ms A' later on 31 October 2020. He told Police that he was just friends with 'Ms A'. Police however suggested that he was having an affair with her but Mr D'Ambros said that he was not.
Mr D'Ambros said that he spoke to 'Ms A' via the phone, (both his mobile and work phone landline) as well as text messages. He was asked whether he had asked 'Ms A' during communications on 18 November 2020 to 24 November 2020 where she was. Mr D'Ambros said he had told Police what he knew. It was put to Mr D'Ambros that he did not assist Police in locating 'Ms A' and their investigation of the 'first abduction' of the daughter. Mr D'Ambros reiterated that he told Police what he knew.
In respect of the second abduction (the matter summarised at [26] above), Mr D'Ambros said that as at 1 December 2020 he knew that the daughter had been removed from 'Ms A's custody and that she had no lawful right of custody. He said that he had not previously met Kjoora but had spoken to him on the telephone. He said that Kjoora had 'sworn another individual in' as a 'Public Officer' in his presence, this person was referred to as 'Ballina'.
Mr D'Ambros said that as at 1 December 2020 he was no longer in an intimate relationship with 'Ms A'. On the day that they collected the daughter from the school he said that the teachers told all three of them to stop trying to remove the girl. However Mr D'Ambros said that he believed that the paperwork that he had seen was legitimate and was in order. Mr D'Ambros characterised what had transpired as being 'defrauded by 'Ms A'. It was put to Mr D'Ambros that if he believed that the paperwork was in order he could have stopped what was going on and wait for the Police to come and sort it out. At [30] of his statement ('A-1') he records that 'Ms A' left with her daughter Mr D'Ambros contacted Kjoora and said that they should come back and talk to the Police. He said that Kjoora said to him 'we are shooting off ' and 'I'll let youse know where we are'. Mr D'Ambros said that established that he did ask where they were going and taking the child.
It was put to Mr D'Ambros that contrary to his evidence at [32] of Exhibit 'A-1' he was supporting 'Ms A's Facebook Social media postings and did not ask her what was actually going on with the absence and Police trying to locate her. The Tribunal observes that the matters at paragraphs [31] - [34] appear in contrast to the oral evidence of Mr D'Ambros at hearing. In his statement he stated that he was distressed that they left town without talking to Police first, contacted 'Ms A' in response to a Facebook post, resulting in cessation of contact by 'Ms A', was notified on 3 December 2020 that 'Ms A' had been arrested in Canberra and the child returned to her father, and travelled to Canberra to meet with Kjoora to organise bail for 'Ms A', when Kjoora was then arrested and that since 3 December 2020 he had not sought to communicate with either 'Ms A' or Kjoora.
Mr D'Ambros said in his oral evidence that he did try to communicate with Kjoora after he was arrested. However it was clear from the information tendered as an MFI to support 'R-3' that Mr D'Ambros participated in the GroupChat exchanges up until the time that he was arrested.
In re-examination Mr D'Ambros was asked about his statement at [34] of 'A-1' which read: 'Since that time , I have not sought to communicate with (Ms A) or Kjoora.' Mr D'Ambros clarified that the phrase 'since that time' refers to after he was released from prison.
Mr D'Ambros was asked about some of the material in Exhibit 'R-2' relating to Mr Kjoora's identification documents and contention that he was a public officer. Pages 57 and 58 show either side of an identification card. The words on the card are somewhat verbose and colourful with references to the bearer being officially recognised. Grammar and punctuation errors are present. The language in my view speaks for itself: Let it be Known to Whom These Presents The Bearer of This ID and Travel Permit is Officially Recognised by the Federal Court of Australia has [sic] A Crown in Private (Sovereign) and is Validated Legally and Lawfully Has A Private Person Man) [sic] and Private Property To A Private Estate (the Privacy Act 1988 & Diplomatic Privileges and immunities Act 1967) [sic] The Bearer is Commonly known as: Name: Country Private D.O.B. Private Address: Suite 132 … Avenue Broadbeach Queensland 4128 Australia
The other face of the card reads similar to the preamble to a passport issued in a country which has a constitutional monarchy. Mr D'Ambros said he accepted the ID card and what Mr Kjoora said. When taken to the Court Documents at pages 110-112 of Exhibit 'R-2' purportedly issued by the Magistrates Court at Ipswich Queensland but sealed by the Federal Circuit Court, Mr D'Ambros said that he assumed that they were genuine.
When taken to pages 79 and 80 of 'MFI R1' showing messages on 18 October 2020 Mr D'Ambros clarified that they were post break up messages.
Mr D'Ambros was asked further about what happened on the day that they went to the school on which he had been cross examined. He said that they met at 'Ms A's home where the documents to be shown to the persons in authority at the school were printed. After collecting the daughter from the school Mr D'Ambros said that he dropped 'Ms A' and her daughter home and then he went back to work with his colleague Ms 'L.B' who he had taken with him when asked by 'Ms A' to help retrieve her daughter.
In respect of the crossbow slingshot (prohibited weapon) which he was not essentially cross-examined on, questions were asked about the images. Some of the images provenance was unclear and there was some objection. The Tribunal allowed the evidence (allowing further cross examination as required) in order to understand why Mr D'Ambros had sought out this prohibited weapon and what purpose he sought it for. He said in his evidence that he purchased it to control rats at the rear of his residential property which abutted a reserve.
The Tribunal asked a number of questions of the witness consistent with its powers under s 36 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The Tribunal noted that the evidence about the 3rd party 'Ballina' who accompanied Mr Kjoora and these matters were put to Mr D'Ambros. Further questions were put concerning how long he waited at 'Ms A's home with her and her daughter while waiting for Kjoora and Ms Ballina to return there. Mr D'Ambros said that the other two had gone with the documents to the Principal's office and they waited at the car outside 'Ms A's home for 5 or 6 minutes for the others to return. Ballina was described by Mr D'Ambros as a friend.

Commissioner's evidence

The Commissioner relied upon the material outlined at [22]. None of the Commissioner's witnesses (Re: Exhibit 'R-3') were required for cross-examination at hearing, but the USB Key of the video (Exhibit 'R-3' was played to the Tribunal in total during the hearing.

Applicant's submissions

In oral submission at the end of the evidence Mr D'Ambros's Counsel conceded that his client was not an impressive witness. He conceded that he was not good with dates and times and noted that his statements were not recorded by Police consistent with his records.
Mr D'Ambros's Counsel submitted that notwithstanding these observations he did not provide false information or lie. It was submitted that the incompleteness of some of the answers was, in the totality of the circumstances of his evidence, not sufficient to detract from a finding that he gave evidence at an appropriate level of candour.
In written submissions prior to the testing of the evidence Mr D'Ambros submitted that after some six months on remand for the child abduction offences the DPP withdrew the charges and discontinued proceedings. In respect of the Firearms and Weapons Prohibition Orders, Mr D'Ambros submitted that he cooperated fully with Police surrendering the slingshot crossbow and after Internal review that Order was set aside.
In determining the public interest Mr D'Ambros made reference to the case of Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] where the former Tribunal looked at the intention of Parliament and how public interest considerations would operate in areas where the character ground (of the individual) was not relevant or possibly in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
Whilst Mr D'Ambros made significant submissions and provided evidence of his genuine reason for shooting (Exhibit A-3) the Commissioner's case did not rest on these matters, but rather that by his conduct and evidence before the Tribunal, Mr D'Ambros was neither a person of sufficient repute and integrity to hold a firearms licence and that overall it was not in the public interest for him to hold the licence. As will be seen below the main prongs of evidence leading to such submissions concerned the 'detain for advantage' offences, the unregistered firearm and the prohibited weapon.
Mr D'Ambros in his prehearing submission submitted that he had at all times complied with all licensing requirements since first being issued with a licence on 3 August 1998. Submissions were made that his former business (smash repairs) had a clearance to work on NSW Ambulance vehicles and that his current business has recently performed work at a Church and Randwick Racecourse. These matters it was submitted supported his good standing in the community and positive character.
A lack of criminal convictions and compliance with bail conditions were also stated as matters standing in his favour. It was also submitted that the evidence in the s 58 documents concerning the second abduction (from the school) did not substantiate a finding to the civil standard that Mr D'Ambros committed the offences. By way of defence to the matters Mr D'Ambros submitted that at all times he believed that his actions were in accordance with the law.
In respect of the prohibited weapon he submitted that he was unaware that it was classified as such. In respect of the unregistered firearm (which belonged to a now deceased relative) Mr D'Ambros submitted that he believed that as he was authorised at the time to possess and store firearms then he was within the rules in keeping the firearm in his safe with his other firearms.
In the pre-hearing submissions a repeated point was made that there was no evidence that Mr D'Ambros had mislead authorities, especially in respect of the two incidents concerning the child of 'Ms A'. The lack of any formal Court outcomes arising from the prohibited weapon and the unlicensed weapon were submitted as grounds that the matters were not significant and should not count against a licence being issued.
At [63] of the written prehearing submissions Mr D'Ambros submitted that: The only available inference for the Tribunal to find in support of this is the consistent, credible, reliable behaviour of the Applicant during the whole process. It can be without any doubt be accepted this has been a salutatory lesson for the Applicant.
Mr D'Ambros submitted that his communications with the Commissioner since the events leading to his being charged, only suggest 'his character to be one of credibility, reliability, candour and honesty'.

Commissioner's Submissions

The Commissioner made oral submissions at the conclusion of the evidence. The Commissioner submitted that the video evince showed that aspects of Mr D'Ambros's evidence was false. In the video Mr D'Ambros and 'Ms A' can be seen holding hands as they walk into the school.
Mr D'Ambros's evidence at hearing was characterised by the Commissioner's representative as unreliable, inconsistent and self serving evidence. Submissions were made that Mr D'Ambros's answers were evasive and that he gave false and unreliable evidence. Mr D'Ambros himself admitted that his evidence at [32] of 'A-1' was false and then later in re-examination attempted to walk back on that matter.
The Commissioner submitted that in response to the Tribunal's questions about when the relationship ended Mr D'Ambros had cited 10 October 2020 but they referred to 18 October 2020.
The Commissioner submitted that there were no two essential questions for the Tribunal. Can the Tribunal be satisfied that Mr D'Ambros is a fit and proper person to have a firearms licence again, including whether he can be entrusted with possession and use of firearms, and then, whether it is in the Public Interest for him to hold a firearm's licence.
The Commissioner in oral submissions referred to the fact that firearms possession and use is a privilege not a right. The Commissioner submitted that untruthfulness in Mr D'Ambros's oral and written evidence was a significant matter. As a result the Commissioner could not be satisfied in their dealings with Mr D'Ambros if he was re-issued a firearms licence.
In written submissions reference was made to the Court of Appeal's observations in Kocic v Commissioner of Police , NSW Police Force (2014) 88NSWLR 159 at [1] 1. … The scheme for licensing persons to possess and use firearms is regulated by the Firearms Act 1996 (NSW). That Act confers power on the Commissioner of Police to grant or refuse licence applications, but the power to grant an application is tightly constrained: Firearms Act, ss 11 and 12. In particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant.
Reference was made to the notion of whether Mr D'Ambros was a fit and proper person to be issued with and hold the licence. The lad cases of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 was referenced at [65] "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 a person who 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, 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 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 a fit and proper person to undertake the activities in question.
The Commissioner also relied upon the case Austin v Commissioner of Fair Trading [2016] NSWCATAP 175 at [59]: The passages from the authorities set out by the Tribunal (at [26]-[30]) emphasised: (1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. (2) "Fit" with respect to an office is said to involve honesty, knowledge and ability. (3) 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. (4) 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 it will not occur, or whether the general community will have confidence that it will not occur. (5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. (6) 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.
Reference was also made to the case of Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]: 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 Commissioner in written submissions relied on the often cited cases of, Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 and Webb v Commissioner of Police, NSW Police Force [2004] NSW 110. In Ward Deputy President Hennessy observed at [27]-[28] that: 27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. 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.
Appropriately the Commissioner submitted that an applicant is not required to prove a 'near-absolute negative' but rather that the Tribunal is to consider all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety as referred to in Webb.

Consideration

The decision under review is based upon the notion that Mr D'Ambros having access to firearms would be contrary to the public interest. In respect of the public interest I have previously noted that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 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 (ii) by promoting the safe and responsible storage and use of firearms, and
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered. This matter was raised by Deputy President Hennessy in Livadaru v Commissioner of Police [2008] NSWADT 160 where referring to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
In addition consistent with a line of cases referred to in part by the Commissioner, the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. 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 this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
In the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
I also note that consistent with the Commissioner's submissions, whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is referred to the lead case of Bond and the various ADT and Tribunal cases that have relied on Bond. The case of Bond (as outlined at [64] above), provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
This position from Bond is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearms Act access to and use of firearms is not a right but a privilege.
It is clear from the legislation and the authorities referred to above that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In applying the discretion for the public benefit, having considered the evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) that would prevent Mr D'Ambros being granted the licence.
I note the comments of the legal representatives from both sides at the end of Mr D'Ambros's evidence during the hearing. The true position might lie somewhere in the middle but it was clear that on the basis of his answers during cross examination and contrasting his recent statements adopted in evidence with his oral evidence and contemporaneous material recorded from him by Police, there were many contradictions in his evidence.
I had the benefit of observing Mr D'Ambros during his lengthy cross examination and found that when an inconsistency arose in his evidence he was unable to explain that inconsistency and he became more defensive in his approach to the questioning as the hearing progressed. Whilst an observer might note that initially there were no issues as to candour as the hearing progressed there was a growing lack of candour in his answers to the Commissioner's representative.
In some ways once his minor deceit had been exposed his evidence began to unravel. It appeared that Mr D'Ambros was either unprepared for such a situation or unwilling to accept such a situation as his approach appeared consistent with a witness who maintained their innocence through having been legally exoneration by lack of negative Court outcomes. This is merely an observation on Mr D'Ambros's evidence before the Tribunal.
During re-examination and the subsequent further questions about the prohibited weapon (slingshot - crossbow) I observe that from my perspective the situation worsened. The answers were defensive and at times illogical. In respect of the stated reason for acquiring the prohibited weapon (targeting rats) the nature of the ammunition in part seemed totally unsuited to the stated use and circumstances. Propositions that some evidence was illogical were left unanswered.
Having considered all of that material I reach the position that overall Mr D'Ambros was not candid in his evidence which he is required to be. Putting the objects of the Firearms Act to one side, I note that under s 36 of the NCAT Act a party or witness before the Tribunal has a duty to fully cooperate and disclose. Importantly under the firearms licensing regime the Commissioner is required to form a view that a licence holder will be able to maintain safe and continuous lawful control of firearms in their possession at all times. This important requirement is a cornerstone to public safety and the need to ensure that consistent with the objects, the Commissioner can be satisfied that the condition concerning the overriding need to ensure public safety is met.
When the evidence is examined predominantly about the two abductions, there are significant contradictions. References to advising Police on 24 November 2020 that the last time he spoke to 'Ms A' was 3 November 2020 appear false. That is because in Mr D'Ambros's own evidence in these proceedings he says that he spoke with 'Ms A' on 18 November 2020. There are many other examples, but even if Mr D'Ambros's evidence was to be accepted, that the dates are confused in the intervening period, it would appear that he has deliberately withheld information concerning 'Ms A' and the child's whereabouts from Police because he failed to volunteer any information or do the right thing by the child knowing that the Family Court orders had been contravened and also knowing that Police held serious concerns for the safety and well-being of the child.
Nothing in the messenger app communications paints a favourable picture for Mr D'Ambros concerning the first abduction incident and the duration and cessation of heir intimate relationship. I note that in the video of the school abduction incident on 1 December 2020 Mr D'Ambros and 'Ms A' are seen to be holding hands as they move through the school playground.
The Commissioner submitted that in effect at best Mr D'Ambros's behaviour around these matters (and the incomplete dealings with Police) showed a serious lack of insight. It was submitted that with such a serious lack of insight the Tribunal should not be satisfied that Mr D'Ambros is a fit and proper person and could be trusted to have possession of firearms without danger to public safety or to the peace as well as a finding that it would be contrary to the public interest for Mr D'Ambros to hold a licence. I agree with this submission.
Whilst Mr D'Ambros may well have lived a blameless life for 40 of his years as an adult, the matters that arose from his relationship with 'Ms A' have seriously altered that position. Notwithstanding a lack of proven culpability to the beyond reasonable doubt standard, the overwhelming evidence is that Mr D'Ambros has not been candid, truthful, and genuine in many of his dealings around these matters.
This situation has unfortunately extended to matters relating to firearms and weapons notwithstanding a prior period of some 20 plus years compliance with the licencing regime. Some of Mr D'Ambros's evidence around the slingshot -cross bow was fanciful, especially his evidence that the targets (rats) were a short distance away in a somewhat confined area where he says that he used this high powered prohibited weapon in such a manner to manage vermin. Some of the ordnance of which evidence was received could clearly not have been used for the intended purpose and in the manner described in his evidence. It would have been somewhat ineffective, inefficient and in many ways dangerous to Mr D'Ambros and anyone else in the vicinity. It would appear that from an assessment of all that evidence, the risk would have been greater than the risk posed by the use of a low calibre firearm in such circumstances, noting that would also have been inappropriate, but a lesser risk and as a result a lower degree of recklessness.
Concerning the evidence about taking matters into his own hands and dealing directly with 'Ms A' rather than alerting authorities to the dispute, there is a concern that Mr D'Ambros might in future use a firearm to resolve a dispute. Whilst there is no evidence before the Tribunal that he sought to use his position as a registered user of firearms to help bring matters to bear favourably for 'Ms A', the fact that he failed to objectively look at the situation of the schoolyard abduction and attempt to bring a halt to proceedings or have Police intervene when teachers raised concerns, does in my view create some concern of risk.
This issue goes back to the finding concerning a serious lack of insight. Having lived the experience of the first abduction and the Police questioning and concerns over a number of incidents, the fact that Mr D'Ambros was blinded to the clear and obvious deception of 'Ms A' and her associates, and following a child recovery instance only one week prior would believe that the perpetrator had somehow persuaded a Judge to the contrary, and granted custody to the child, shows a complete lack of judgement on the part of Mr D'Ambros.
In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "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".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would not be in the public interest to reissue the licence or grant the licence application in the fresh terms sought.
I cannot be satisfied that Mr D'Ambros will be sufficiently candid and frank in his future dealings with Police such that I could be confident that he would be able to maintain continuous lawful control of firearms in a safe manner at all times. On this basis granting the application at present would be contrary to the objects of the Firearms Act 1996.
Mr D'Ambros has not been frank with the Tribunal and seemed tied to the fact that he had no prior firearms breaches (or current charges in that regard) and that he was without a criminal record. It appears that Mr D'Ambros failed to understand at hearing that considering risk, fitness, and being in the public interest, are not matters of exacting or absolute proofs, contingent on findings of guilt or innocence, but matters whereby all of the evidence is weighed. As the line of cases outlined above illustrate, it is a weighing up exercise and assessment based on all of the available evidence.
It may be that had Mr D'Ambros provided sworn oral and written evidence to the Tribunal consistent with the material served on him in these proceedings, he would have had a lesser burden to overcome. Essentially he would have been assessed only on his role and position in respect of the two abductions (leading to charges which were later withdrawn) and the two other matters, unregistered firearm and prohibited weapon (which did not lead to charges).
Whilst the abduction matters were very serious and a period on remand was imposed it is possible that with his prior good history (both as a citizen and a firearms user) and a frank and honest giving of evidence and full disclosure to the Tribunal a different outcome might have been achieved. I do note however that issues about a serious lack of insight concerning the actions of 'Ms A' and her associates would have had to be overcome for such a favourable outcome to occur.
I note that issues about Mr D'Ambros's evidence, his level of honesty and lack of candour were raised at the end of his evidence. In that regard I note that he and his legal representatives were clearly on notice that it was a live issue in the proceedings and I note that they made brief submissions about such matters. Because of the findings that I have made I clearly give lesser weight to those submissions.
I note that the revoked Category AB licence was due to expire ion 24 January 2024 in any event, that revocation decision is not the one before me.
Having regard to the cases referred to above and considering all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety, in my view it would be contrary to the public interest to reissue Mr D'Ambros with a firearms licence and I so find.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following orders:

Orders 1. The decision to refuse the Applicant's Category ABGH Firearms Licence is affirmed. 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the identity of the person referred to as "Ms A' or her daughter or 'Mr S' as referred to in these reasons for decision, is prohibited.

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: 29 January 2024

At a glance

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Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)