Diamond v Commissioner of Police, NSW Police Force [2023] NSWCATAD 19 | Case summary

Submissions

In making the case that the Commissioner's decision to refuse the Applicant's application for a Category A firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner drew the Tribunal's attention to the Applicant's conduct which such conduct being categorised into domestic incidents involving the Applicant, the Applicant's traffic record and offences related to firearms.
Between August 1998 to September 2003, the Applicant was charged with exceeding the speed limit while driving a vehicle on three occasions.
On 27 September 2003, police were called to an incident involving the Applicant's then domestic partner (the First Alleged Victim) where she alleged that he had committed a series of serious assaults because of a dispute about car keys. That dispute arose at a family celebration when the First Alleged Victim refused to provide the Applicant's car keys to the Applicant because of his level of intoxication. She alleged that the Applicant slapped her across the face, dragged her around by the hair multiple times, verbally assaulted her, pushed and punched her in the face. At one point, when the First Alleged Victim was attempting to walk away from the Applicant, he allegedly ran up behind the alleged victim and pushed her to the ground, punching her in the face again. The brother of the First Alleged Victim intervened, and a struggle ensued between her brother and the Applicant.
According to the police report, the Applicant corroborated this version of events although he stated that the First Alleged Victim was the instigator of the violence. The report describes the injuries that were observed by the police to the First Alleged Victim being that the First Alleged Victims face was red and swollen. Further enquiries made by the police revealed that the Applicant possessed four registered firearms and a telephone interim order was granted. When the police attended the Applicant's residence, the police found a firearm case leaning up against the bedroom wall and not secured within a safe. While the case had three combination locks, it was unlocked and accessible. The police report records that the case did not comply with the standards of safe keeping of firearms then applying under the Firearms Act. Inside the unlocked case was a 12 gauge under and over Perazzi shotgun which was registered to the Applicant. Police also discovered 12 gauge ammunition located in a shooting jacket within the same room. The shotgun and the ammunition was seized by the police.
The Applicant was charged with assault occasioning actual bodily harm and in relation to contravention related to the keeping of his firearm. The charge of assault was dismissed on 28 January 2004 however the Applicant was found guilty of safe storage offences, but the matter was dismissed under section 10 od the Crimes (Sentencing Procedure) Act 1999
While the Applicant accepted that the First Alleged Victim had been extremely upset that evening, he denied the events with his evidence during cross-examination being that he did not hit or strike the First Alleged Victim. In his words: "I never touched her."
The Applicant's oral evidence given during cross-examination that he "did not touch" the First Alleged Victim sits uneasily with the Applicant's other oral evidence. In this respect, while he maintains that the argument was instigated by the First Alleged Victim and her brother, he admitted during cross-examination that the argument had, in fact, turned from verbal to physical, that such had occurred as between the Applicant and the First Alleged Victim as well as her brother and he further accepted that the First Alleged Victim had sustained injuries to her head. However, when asked if he knew how those inquiries were sustained, his evidence was that they were "unexplainable". For this reason, I do not accept the Applicant's evidence as to the events of that evening and rely upon the police report.
Between June 2004 to May 2016, the Applicant was charged with the following traffic offences 1. one count of not wearing a seatbelt 2. eleven counts of exceeding the speed limit; and 3. one count of driving contrary to stop sign or stop line.
The next domestic incident occurred on 21 May 2016. At this time, the Applicant was staying with his brother as he had recently separated from his then wife. The Applicant's brother had contacted the police and reported that the Applicant was being aggressive, intoxicated and driving off in his vehicle with a firearm following a disagreement between himself and the Applicant.
The Applicant's brother, according to the police report, informed the police that the Applicant, after drinking two bottles of wine, had become aggressive and wanted to fight his brother. In response, the Applicant's brother asked him to leave his home which the Applicant initially refused but subsequently left in his car taking his rifle case containing a double barrel over and under shot gun. When the Applicant's brother called the police, he advised police that the Applicant's shotgun was in the rear of the vehicle. He later informed the police that he no longer wanted his brother to reside with him as he was afraid of future violence. An apprehended violence order was taken out on behalf of the Applicant's brother as against the Applicant.
Later that evening, the police located the Applicant and his vehicle which was parked on the side of the road across from a local Game Fish Club which contained a bar. The Applicant was standing about 20 meters away from the vehicle. The police report records that the Applicant "smelt strongly of intoxicating liquor". In response to the questions asked by the police, the Applicant dishonestly informed the police that he had not driven the vehicle but that a friend had dropped him off. The police located the keys to the car in the grass close to where the Applicant was standing. In the rear of the vehicle, the found the rifle case containing the rifle and located 150 ammunition shells.
The Applicant refused to undertake a roadside breath test and declined the services of a doctor to provide a blood sample. The Applicant was arrested for the purpose of a breath analysis. The Applicant continued to dishonestly deny driving the vehicle.
The breath analysis returned a reading of 0.159 grammes of alcohol in 210 litres of breath which is considered high range and is more than three times the legal limit. Due to the high reading, the Applicant's driver's licence and firearms' licence were suspended. The Applicant's firearms were seized.
The Applicant's version of events, according to the police report, was that he had consumed only two glasses of red wine on account of it being his birthday (however, the Applicant's birthday was the day before the incident on the Friday and not the Saturday). The Applicant's version of events according to his cross-examination was initially that he did not recall the amount of alcohol he consumed that day but that he had never drank two bottles of red wine in a day in his life. Later during cross-examination, the Applicant then described having had a beer at lunch that day and then, a bottle of wine over approximately three hours but maintained that he had only drank a "little bit of alcohol" despite the 0.159 breath analysis.
The Applicant denies being aggressive towards his brother and alleges that it was his brother who was annoyed and aggressive towards him. He alleged that he was afraid for his safety, that he attempted to get a taxi but that it would be a 30-minute wait and thought that the "best thing I could do was take firearms and get out". He alleged that because his brother was not licenced to store firearms, that the firearms were usually kept in a safe in a storage shed at a different premise. In answer to the question, "where the guns were when they were at his brother's house?", he alleged that he had taken the guns from the safe on Thursday 19 May 2016 as he intended to train in shooting the next morning on 20 May 2016, but he did not train that day nor the next morning and the firearm remained out of the safe Thursday, Friday and Saturday. During that time, prior to the Applicant placing the firearm in the rear of his vehicle, the firearm sat in the lounge room of his brother's home according to the Applicant. The Applicant accepted that this behaviour was "silly" for which he felt "ashamed" and admitted that he had failed to return the firearm to the safe because of laziness.
The Applicant also denied driving to the pub despite his vehicle being across the road from one. He alleges that he was driving to his ex-partner's home, and he had pulled over to take a moment and that he had never been charged with drink driving and knew that he was doing "the wrong thing". The Applicant admits to lying to the police and accepted that this was also not the right thing to do.
The evidence is insufficient for me to determine who was the agitator of the argument between the Applicant and his brother, but nothing of substance turns on this. I reject that the Applicant had but a "little bit of wine" that evening because of the 0.159 breath analysis but in any case, the Applicant accepts that whatever the exact number of glasses and/or bottles of wine and/or beers at lunch, he was drunk driving and that was the wrong thing to do.
On 4 May 2017, the Local Court heard three charges against the Applicant: not keeping a firearm safely, handling or using a firearm under the influence of alcohol and not having approved storage in compliance with the Act. These charges related to the events of 21 May 2016. The Applicant was found guilty of all three offences at first instance but were quashed on appeal to the District Court on 5 October 2017.
In addition, the Applicant was found guilty of driving with a high range concentration of alcohol, disqualified from driving until 4 May 2022 and a mandatory interlock order was made for 24 months.
Between October 2017 to the end of December 2018, the Applicant was charged with exceeding the speed limit three further times and in one instance, exceeding it by more than 20km an hour (but less than 30km an hour).
Then, in 2018 a third domestic violence order was made against the Applicant in South Australia involving the protection of the Applicant's former partner. The order was made on 12 September 2018 and revoked on 27 November 2018.In response to this, the Applicant's evidence in cross-examination was that he had no recollection of the allegations made by the Applicant's former partner that led to the domestic violence order but that she was a "fabricator".
In 2019, the Applicant was charged with driving during a disqualification period on two occasions. On the 2 April 2019, the Applicant was stopped by police while driving during a period of disqualification from driving in NSW. The Applicant produced what the police report notes as a Tasmanian licence, however, the Applicant contends that he never held a Tasmanian licence but held a South Australian licence. The police established that the Applicant did hold a valid licence from a State other than NSW but that the status of his NSW licence was dominant, and he was prohibited from driving in NSW. During this interaction, the police report records that the Applicant was argumentative and aggressive towards the police and when he left the location, stuck his middle finger up at the police.
The Applicant contends that with only a few months left of the interlock program, he moved to South Australia and applied for a South Australian driver's licence. Unbeknownst to him changing licences while the interlock program was subsisting was a breach.
The next incident or set of incidents was an offence of using a carriage service to menace/ harass/ offend, which was heard by the Local Court on 28 July 2020. The charge was in respect to the Applicant harassing his brother by phone by calling him about 30 times. During one conversation, the fact sheets records that the following words were spoken: "The Applicant's brother: "Why are you calling me and harassing me?" The Applicant: "Ha ha ha ha, because I want to harass you and there's nothing you can do about it … I'm going to get you, I'm going to sort you out"
In respect of this conduct, the Applicant admits that he engaged in this conduct which he acknowledges is wrong but there were "extenuating circumstances". Those circumstances being the Applicant's belief that his brother manipulated his mother into changing her will and the Applicant's brother refusing to speak to the Applicant about that issue and the administration of their late mother's Estate. During the Applicant's cross-examination he indicted that his regret in acting in this manner was because it led to the loss of his licence.
In addition, the Applicant submits that the primary agitator leading the Applicant to come to the adverse attention of the police was his brother, who is now deceased and as such, it is unlikely that he will find himself in many of those situations again.
Between November 2020 to September 2021, the Applicant was charged with: 1. Four counts of exceeding the speed limit; 2. One count of driving across dividing lines to perform a U-turn; and 3. One count of using a mobile phone while driving.
The Applicant is due to be sentenced in the Local Court on 8 February 2023 for offences allegedly committed on 10 April 2022 namely "special category driver drive with special range PCA - first offence and "drive, licence suspended under section 66 Fines Act - first offence" (see above discussion). In response, the Applicant describes that this came about after he nominated to go onto an unrestricted class C licence with conditions after exceeding his points allowance with the condition that he complete the Traffic Offender's Program within six months. The program was completed but the certificate of completion was sent to the Court and not services NSW. Services NSW subsequently suspended the Applicant's licence
The Commissioner submits that: 1. The Applicant's domestic history shows a lack of self-control on the part of the Applicant, and this poses a risk to public safety were he to be authorised to use and possess firearms; 2. The Applicant's traffic record shows a disregard for public safety, including his own and for the law; 3. The evidence with respect to the Applicant's contraventions of firearm laws, further supports that it is not in the public interest for the Applicant to be authorised to possess a firearm.
Alternatively, the Applicant submits that: 1. The Applicant has had a 29 year professional shooting career, having won gold medals at the Olympic Games and World Championships and has held a firearms licence or permit from the earliest age. He has been trusted to compete and travel with firearms during this time. 2. The Applicant's "mentor", Mr Aubrey has been helpful in dealing with relationship issues and business ventures and the Applicant feels better able to cope and have developed strategies to enable him to deal with stressful situations. 3. The Applicant's traffic offence history is insufficient for the Tribunal to refuse him a licence given his extensive history of having firearms 4. Drawing an analogy with a primary producer and to authorities of Romanos v Commissioner of Police [2019] NSWCATAD 272 (Romanos) and Finlay v Commissioner of Police [2020] NSWCATAD 5 (Finlay), there is a public benefit in persons being able to engage in gainful business or employment and in the case of the Applicant he has the potential to work in shooting coaching clinics. 5. As discussed above, the primary agitator in respect of the Applicant's conduct, being his brother, has been removed given the Applicant's brother's passing.
In reply the Commissioner submits: 1. There is a difference between a primary producer being able to use and possess firearms to a person being able to take part in target shooting. In any case, the public's right to safety must outweigh any financial impact that might flow from the loss of firearms licence; and 2. The matter before the tribunal is not about the Applicant's past success in shooting but rather involves an examination of the Applicant's domestic history, traffic records and firearms-related offences. When that is done, there are serious concerns for the public safety sufficient to affirm the decision to refuse the Applicant a licence.

Consideration

The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety, the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests.
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.
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 applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant's interest in shooting is a long-standing one. I accept that the Applicant has shown an immense talent in the competitive sport of shooting.
However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Accordingly, the Applicant's genuine reason for holding a firearms licence and the positive impressions he has left on his "mentor" cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
In my view, the evidence of the Applicant's conduct related to firearms as detailed at paragraphs 21 and 32 above make it apparent that the Applicant either does not understand his obligations as a licensee or, alternatively does not understand the importance of strict observance of his obligations. Given the Applicant's history of continued and multiple traffic offences which evidence the Applicant's willingness to disregard legislative schemes aimed at protecting public safety, I find that the evidence supports that it is the latter. Even if I was wrong about that, either are a sufficient cause to warrant the decision to refuse him a firearms licence.
In respect of the Applicant's history of violence in domestic situations as described above, this conduct highlights the Applicant's lack of control and ability to exercise good judgment when confronted with a frustrating circumstance or a situation of conflict. I am not persuaded based upon the letter from Mr Aubrey of See Thru Cleaning dated 30 August 2022 that the Applicant's character has substantially changed under Mr Aubrey's "mentorship". While Mr Aubrey is described as the Applicant's "mentor" there is no evidence that his advising of the Applicant is based upon any professional medical, counselling or coaching qualifications. He is supportive of the Applicant and is a close friend, but I do not find that this evidence is persuasive as a basis to find that the Applicant has made improvements to his character and conduct.
I also do not accept that the passing of the Applicant's brother as the alleged "prime agitator" is an answer to these concerns. As submitted by the Commissioner, the domestic incidents are not limited to interactions with the Applicant's brother and indeed, the first domestic incident in the Applicant's record relates to his domestic partner at the time.
In respect of the Applicant's submissions urging the Tribunal to apply, by way of analogy, authorities of Romanos and Finlay which relate to primary producers and the financial impact of the loss of a firearms licence - I accept the submissions of the Commissioner. This Tribunal has held on numerous occasions that the public's right to safety must outweigh any financial impact that might flow from the loss of a firearms licence: Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347 at [41]; Hermann v Commissioner of Police [2020] NSWCATAD 127 at [51]; Hoddle v Commissioner of Police [2021] NSWCATAD 130 at [51].
The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
The objects and principles of the Act state that the possession of firearms is a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principal issue then is whether there is a risk to the safety of the public if the Applicant is granted the licence.
As has been frequently noted, 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. The Commissioner argues that the Tribunal could not be satisfied that the Applicant does not present a danger to public safety and, accordingly, it is not in the public interest for him to hold a firearms licence.
I agree with that view. I am of the view that an unreasonable risk to public safety would be created if the Applicant was authorised to possess and use a firearm: section 11(7) of the Act because there is a real risk that the Applicant's attitude towards his obligations, as evidenced by his conduct, are inconsistent with the objects of the Act and the conditions of his licence. Even if I was not so satisfied, I further find that there would be risk to the public if the Applicant were in possession of a firearm at a time when he was confronted with frustrating circumstances.
That being the case, it is my view that it is contrary to the public interest that the Applicant holds a firearm licence.
In my view, it is appropriate that the Applicant have some time without a firearms licence in which he focuses his mind on the underlying principles and objects of the Act and the need for strict compliance with his obligations as a firearms licensee. Additionally, until such time as the Applicant has taken steps to deal with his ability to behave more appropriately when confronted with a frustrating circumstance, he should not be allowed to hold a firearms licence.
It follows in my view that the correct and preferable decision is to refuse the Applicant's firearms licence. Accordingly, I affirm the Commissioner's decision.

Diamond v Commissioner of Police, NSW Police Force

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Judgment (8 paragraphs)

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Cases Cited (9)