DMC v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2018-06-06

Introduction

In these reasons the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs and the personal affairs of other individuals. The Applicant is referred to as DMC. In these reasons I refer to DMC's ex-wife and two daughters. I will refer to DMC's ex-wife as X and his daughters as Y and Z.
DMC held a category ABC firearms licence under the Firearms Act 1996 ("the Act"). In August 2017 a delegate of the Commissioner of Police ("the Commissioner") determined to revoke DMC's licence. That decision was affirmed on internal review.
This is an application for review of the determination to revoke DMC's firearms licence.

Background

The relevant background is set out in the internal review statement of reasons. I understand that these points are not in dispute: 1. DMC has been authorised for firearms in NSW under past and current legislation since at least 31 December 1990; 2. DMC's Category ABC firearms licence was first issued on 3 August 1998 for the genuine reason of Primary Production; 3. In April 2004 police inspected DMC's firearms safe and found an additional locking point was required on the main door; 4. In 2010 DMC was charged in relation to allowing his nephew, who held no firearms licence, to access an air rifle registered to DMC. DMC's licence was suspended and all his registered firearms were seized; 5. In August 2010 DMC were found guilty of the offence Allow unauth person possess firearm-not proh firearm/pistol but the charge was dismissed without conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999; 6. DMC's licence was revoked on the grounds of DMC's contravention of the Act and in the public interest, but the revocation was set aside following an internal review of that decision. DMC's licence was reinstated on 28 October 2010 and DMC's firearms were returned to DMC, including the firearm that was the subject of DMC's offence; 7. In 2013 police inspected and approved DMC's firearms safekeeping provisions and recorded that DMC's firearms matched the Integrated Licensing System; 8. DMC's Category ABC firearms licence was reissued in September 2013 for the genuine reason of Primary Production; 9. DMC and X were in a relationship for about 20 years and have two daughters, Y and Z. 10. In May 2016 police received allegations of a history of unreported domestic violence by DMC, involving possessive, isolating and controlling behaviour towards X, Y and Z. It was also alleged that this conduct by DMC has caused mental health problems for both Y and Z. Police were also advised that DMC becomes violent when he is intoxicated; 11. DMC has denied these allegations. No detail has been provided regarding the alleged history of domestic abuse by DMC; 12. There is no evidence to support the allegations that Y and Z have mental health issues. 13. DMC advised that his daughters do not support their mother's allegations, and that he is in a current stable relationship with another partner; 14. On 8 July 2016 the Local Court granted a Provisional Apprehended Violence Order (AVO) for X's protection. This became an Interim AVO on 14 July 2016. The Interim AVO against DMC was withdrawn on 19 January 2017; 15. On 8 July 2016 police seized 14 firearms and ammunition from DMC's residence. Discrepancies were identified in regard to the serial numbers of two of those seized firearms; 16. DMC's Category ABC firearms licence was suspended from 15 July 2016. The licence was revoked on 16 August 2017 on the grounds of DMC's domestic circumstances/way of living, and in the public interest; 17. In November 2017 one of DMC's daughters contacted police in regard to a document that DMC had prepared for submission to the Firearms Registry. Police formed the view that DMC was attempting to coerce his daughter into signing a document, written by DMC, that contains many lies; 18. Police hold serious concerns regarding DMC's access to firearms.

Applicable legislation

The Tribunal must make the correct and preferable decision having regard to the material before it: section 63(1) of the Administrative Decisions Review Act 1997. When determining an application for an administrative review of an administratively reviewable decision, the Tribunal may confirm or vary that decision, set it aside and make a substitute decision, or set aside the decision and remit the matter for reconsideration by the administrator.
The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: section 3(2)(d) of the Act. It is an offence under section 7A of the Act to possess or use a firearm unless authorised to do so by a licence or permit.
The categories of licences, the firearms to which they apply, and the authority they confer, are set out in section 8 of the Act. As noted, DMC held a category ABC licence. A category A licence authorises the licensee to possess or use firearms that do not self-load, such as air rifles, rim fire rifles that are operated by a bolt, lever, break or slide action, shotguns that are operated by a break, bolt or lever action, etc.
A category B licence authorises the licensee to possess or use longarms that do not self-load, such as centrefire rifles, muzzle loading firearms and shotgun/centrefire rifle combinations that are operated by a break action.
A category C licence authorises the licensee to possess or use self-loading rim fire rifles with a magazine capacity of no more than 10 rounds, pump action shotguns with a magazine capacity of no more than 5 rounds, self-loading shotguns with a magazine capacity of no more than 5 rounds.
Section 24 of the Act sets out a number of grounds on which the Commissioner may or must revoke a licence. Section 24(2) provides: 24 REVOCATION OF LICENCE ... (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The issue in this matter is whether it is not in the interests of the public for the applicant to hold a firearms licence.

The concept of the 'public interest'

The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilcox CJ and Keely J said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself: O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5.
In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged 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 from the interest of an individual or individuals"
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Tribunal's Appeal Panel said: 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"
The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32].
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: 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.

The evidence

DMC relies on his own evidence. He provided an affidavit and he appeared at the hearing, gave evidence and was cross-examined.
The Commissioner relies on the evidence of Senior Constable Vanessa Kelson. Senior Constable Kelson provided a statement and appeared at the hearing, gave evidence and was cross-examined.
Senior Constable Kelson also provided a copy of statement that X had given to police in July 2016 in support of an application for the provisional AVO. That statement made allegations regarding DMC and lead to the AVO referred to above.

Senior Constable Kelson

Senior Constable Kelson gave evidence that she took a statement from X in July 2016. The statement related to a domestic matter involving X and DMC. As a result she applied for and was granted a provisional apprehended domestic violence order. Senior Constable Kelson said that an agreement was reached in relation to the AVO because X was physically and emotionally unable to give evidence in court against DMC. She has spoken to X several times and she said that X remains scared and nervous of DMC. She said that when she took the statement from X, X was crying, upset and appeared to be frightened.
She said that she has found no reason to disbelieve anything that she has been told. She believes that X, Y and Z are victims of domestic violence.
Senior Constable Kelson referred to correspondence from DMC to the Firearms Registry in support of his assertion that Y and Z do not support X's allegations. She said that on 4 November 2017 Y attended the Police Station and gave her a copy of an unsigned letter to the Firearms Registry that was dated 3 November 2017. That letter identified Y and Z as the authors. She said that Y informed her that neither she nor Z wrote or signed the letter.
Senior Constable Kelson believed that DMC was going to coerce Y and Z into signing the letter and therefore she brought the issue to the attention of the Firearms Registry.
Senior Constable Kelson also stated that on 6 May 2018 she spoke to X and took a short statement from her. X showed her a 16 May 2016 text message that was sent to X from her sister-in-law - the partner of DMC's brother. The message read in part "I've been worried about you guys especially as he's got guns. ... Hopefully [DMC] won't do anything silly. ... [DMC's brother] and I have been in similar situations so we are thinking of u ..."
Senior Constable Kelson also referred to DMC's application for an internal review in which he indicated that Y had stabbed her uncle in the hand. In his application for an internal review DMC stated: I agree that on 14 May 2017 my wife left the family home with my daughters and stayed with the maternal extended family. I am informed by my daughters that [the extended family] forbade my eldest daughter [Y] from travelling to and visiting me … and that as a result my daughter stabbed [her uncle] in the hand. It was arranged that both my daughters were admitted to hospital soon thereafter. I was not present during this altercation.
Senior Constable Kelson stated that DMC's understanding is not true and that Y's uncle was attempting to take a knife from Y when she was harming herself and he received a small cut to his hand. Senior Constable Kelson said that she finds it disturbing that DMC has lied in his documents to the firearms registry.
She indicated that she had asked both X and Y to attend the hearing but both declined. X does not wish to attend court nor make further statements. Y does not wish to make any statements nor does she wish to give evidence against her father however she remains nervous and highly strung with emotional and mental health issues.
Senior Constable Kelson stated that she believes that DMC is not a fit and proper person to hold a NSW Firearms Licence due to his reported emotional and physical abuse of his family and his untruths to the NSW Firearms Registry as well as the previous charge of Not Keep Firearm Safe.

X's statement

Senior Constable Kelson provided an unsigned statement which she stated was given to her by X in support of the AVO application.
The unsigned statement includes: "I moved out of the family on 14th May 2016. I left the home because of the history of violence and intimidation which we have suffered for years. I am finding out things that [DMC] has done to [X] and [Y] over the years. He has been cruel to us in the past. [X] and [Y] have had to seek mental health assistance because of the cruelty and abuse he has put them through. Both the girls have been seeing a Doctor because of the abuse in the home over the years. They are both still having counselling sessions and seeing a Dr. Some of the things [DMC] has done to me include kicking us out of the house at least three times over the years. He did that because I didn't support the way he punishes the girls. The way he punishes [X] and [Y] is he gets in their face and yells at them. I slide myself between them and stop him from looking at the girls and stop them from looking at him. He would get extremely angry with me and then kick us out of our home. We sometimes used to go for a drive to [another area] just to get away from him. Over the years [DMC] has been very intimidating towards me. I am frightened of him at times and worried about what he may do to me or one of the girls. He likes to be in charge of the family and he does this by being overbearing and intimidating. Since I have moved from the family home, the girls have joined me in [another place]. [DMC] has been texting and calling the girls to try to get me to talk to him. I do not wish to talk to him. The relationship is over however I support the children seeing him if that is what they want. I do not want to have any contact with him as I am scared of him. The only reason he wants to speak to me is to harass and intimidate me. The girls can speak with him on their phones if they like however I am sick of him calling the girls and asking for information regarding me. [DMC] has been trying to find out where we live. I do not want him to know where I live as I am scared. I am very worried about [DMC] coming to [the area where they live] and what he may do if he finds out where I am. The constant harassment by [DMC] to me via [X] and [Y] is very upsetting to them. I want the order to say that he can't contact them to harass me. There is a history of violence and intimidation over the years and cruel behaviour however I am not willing to disclose the details. I just require an AVO at this point
Senior Constable Kelson also provided a copy of a notebook entry and she stated she saw X sign the entry. That entry refers to the 16 May 2016 text message sent to X from her sister in law that is referred to above.
As noted, X did not provide any evidence in relation to these proceedings and did not attend the hearing. No other witnesses attended to give evidence in support of the allegations that X made against DMC.

DMC's case

DMC provided a statement annexing several documents showing communications between himself and the Firearms Registry and between himself and [X] and [Y].
DMC denies the allegations that X made in regard to him. He noted that X did not specify any particular incidents and that there is no medical or other independent evidence to support any allegations of violence. He also noted that there is no evidence to suggest that any incidents were ever reported to the police or any other authority. He also asserts that he has never had an opportunity to respond to those allegations.
DMC provided a letter dated 31 October 2017 from the Firearms Registry which offered him the opportunity to provide further information in relation to his application for an internal review of the decision to revoke his firearms licence. The letter stated: "I hold the view that you should be given the opportunity to further support your submissions with the following: • Evidence that your divorce was finalised on 30 September 2017; • Evidence to support your advice that your daughters do not support their mother's allegations; • Evidence of your current stable relationship with another partner."
His evidence is that he sought assistance from his daughters in response to that letter to show that they did not support X's allegations. Y was prepared to offer him some assistance; however Z did not want to be involved in the matter at all and ceased all communications with DMC.
DMC provided screen printouts of Facebook conversations between himself and Y. His evidence is that he drafted a document which addressed the issue of whether Y and Z support X's allegations and gave the document to Y so that she could make whatever changes she wanted to it. The Facebook conversations show the attempts that DMC made to get Y to agree to a form of words that could be presented to the Firearms Registry.
The first draft of the document comprised three pages and is dated 3 November 2017. It covered a range of subject matters but mostly focused on X's application for an AVO. In particular it took issue with a number of allegations that X had made about DMC.
It is apparent from the Facebook conversations that Y did not want to include any reference to the AVO in the document. In a message sent on 4 November 2017 Y said to DMC: "I'm not going to address the Avo in it because that's done with I just want to state why you need your firearms".
In a message sent on 5 November 2017 Y proposed a single paragraph that dealt with DMC's need for firearms and his handling of firearms.
In response, DMC told Y that he would make some minor alterations/additions and send it back to her. The further draft that DMC forwarded is dated 6 November 2017. This draft comprised one page. It included the single paragraph that Y had proposed and added a further six paragraphs which revisited the AVO allegations and expanded on the points that Y had included in her proposed paragraph.
In a letter dated 16 November 2017 DMC wrote to the Firearms Registry's Case Management Unit: At present I have not been able to supply my daughters supporting statements due to one moving to another location and internal disputes/situations between my daughters and their mother and uncle and aunt. I am not involved in those dynamics as it concerns a court case in which my eldest daughter was in. The verdict handed down was not to my daughter's satisfaction and therefore there has been an implosion within the family dynamics ... (My second daughter has moved to … as a result of this and also problems between her and her aunt and uncle …). ... For this reason I do not want to push my daughters too much as I understand they are quite stressed by recent events, the court case and also ongoing interference/arguments between them and their mother/uncle/aunt. Nor do I want to place them in a position where they have to discredit one parent against the other. As mentioned earlier I am not involved in those issues and prefer not to be as it is between them and their business. ... I will supply if you require a statutory declaration to support this. I would prefer to leave my daughters out of this as they have their own troubles/issues/situations and I would not like to be seen harassing them with my affairs. They are adults!
As noted above, Senior Constable Kelson gave evidence that she believed that DMC was going to coerce Y and Z into signing a letter to be sent to the Firearms Registry. DMC denied that allegation and he addressed the issue at paragraphs [16] - [17] of his affidavit as follows: 16. I deny any suggestion of ever attempting to coerce my daughter to make any false statement in relation to this matter. I did seek her assistance to provide evidence in support of my contention of the allegations of my wife being false. [Y] had willingly been involved in that process. 17. Over the course of preparing my submissions to the NSW Police Service I had a number of discussions with [Y] and together we drafted a document which was going to be attached with my other letter in relation to the internal review ... My intention in this exchange and with my other contact with [Y] was to enlist her support in refuting the allegations which had been made to the Police which had led the Police to form the view that I was not a fit and proper person to hold firearm licences. Annexed and marked Annexure F is the unsigned draft of the document which [Y] had approved as representing her true recollections of matters raised in the AVO Application. The first I heard that [Y] was alleging I was coercing her, came in the internal review statement of reasons prepared by the Police and dated 13 November 2017. The content of Annexure F represents, in my opinion, [Y's] true and correct account. It is certainly consistent with my own recollection of the various issues raised.
The document that DMC referred to as "Annexure F" is the one page draft letter to the Firearms Registry dated 6 November 2017. Under cross-examination DMC agreed that Y had not written or signed that document but maintained that it reflected what Y thought.

Consideration

I agree that little weight can be attributed to the statement of X as it was not prepared for the purposes of these proceedings and she was not available to be cross-examined. DMC disputes the allegations that are contained in that statement. I note his evidence that X's statement was given one week before DMC received notice from X's solicitor requesting that they enter into property division negotiations and that these were in the context of an acrimonious marriage breakdown. I have insufficient evidence to attribute weight to that contention.
The evidence of Senior Constable Kelson is useful in that it gives her impression of X as a complainant. I accept that X impressed Senior Constable Kelson as a person who was distraught and stressed. However, without evidence from X I have no basis on which I could conclude that the alleged conduct by DMC was the cause of that distress.
I note that Senior Constable Kelson formed the view that DMC was attempting to coerce Y into signing a document that DMC had written and that Y did not agree with the contents of that document. I accept that some inferences could be drawn from the fact that Y attended the Police Station and discussed the correspondence with Senior Constable Kelson. In my view it is reasonable to believe that Y was concerned about the manner in which DMC was undertaking that process. However, Y did not provide a statement to the Police and she has not provided any evidence in these proceedings. Without evidence from Y I have no basis on which I could conclude that DMC was attempting to coerce Y into signing a document to be submitted to the Firearms Registry in circumstances where she did not agree with its contents.
Nevertheless, it is apparent from the record of the communications between DMC and Y that DMC was attempting to persuade Y to provide a far more detailed level of content to that which she proposed.
Of greater concern to me is the approach that DMC has taken in his affidavit. I have quoted paragraphs [16] - [17] of the affidavit above. It is apparent from those paragraphs that DMC has attempted to give the impression that Y had agreed to the contents of the one page draft letter to the Firearms Registry dated 6 November 2017. It is clear from the other material before me that this was not the case. Y had not agreed to the contents of the letter.
It is not in dispute that Y attended the Police Station on 4 November 2017 and spoke with Senior Constable Kelson. The Facebook communications dated 4 November 2017 and 5 November 2017 make it clear that Y did not want to deal with the AVO issue other than superficially. It is equally clear that the draft letter dated 6 November 2017 dealt with AVO issues in some detail. Y had not agreed to that content.
I have quoted from DMC's 16 November 2017 letter to the Firearms Registry's Case Management Unit above. It is concerning that the letter presents a false impression regarding the reasons why DMC had not provided supporting statements from Y and Z.
At the time he prepared that letter he was aware that Z was not prepared to provide him with a letter of support. She had blocked him on Facebook and was not otherwise in communication with him. It was also apparent that Y had ceased communicating with him.
DMC's 16 November 2017 letter suggests other reasons for not supplying supporting statements from Y and Z. Those reasons may have been accurate but the letter was misleading in that it did not provide the complete explanation.
The level of co-operation and frankness demonstrated by a licensee in dealings with the regulator is indicative of the licensee's character.
A licensee has an obligation to act in a manner that demonstrates candour and frankness in his or her dealings with the regulator. DMC's conduct in providing the correspondence to the Firearms Registry demonstrated a lack of candour and frankness. It casts doubt in regard to the integrity of his dealings with the regulator. It is even more of a concern given that he has previously been the subject of a licence revocation and had successfully challenged that decision. He should have been aware of the need for candour and frankness in those communications.
The administration of justice is dependent upon the ability of courts and tribunals to rely upon the accuracy of statements made in proceedings before them. This Tribunal is entitled to expect not only truth but frankness from those who appear before it. An applicant should be a witness of truth. Half-truths are not sufficient. It is apparent that DMC lacks understanding of the importance of these issues.
In my view, DMC's conduct and lack of understanding of the need for accuracy, candour and frankness suggests that there is cause to be concerned in regard to whether he is likely to demonstrate those characteristics in his dealings with the regulator in the future. That leads me to conclude that it is not in the public interest for DMC to continue to hold the licence.
Having formed this view, I do not need to consider the question of whether the Applicant is a fit and proper person to hold the licence. If his conduct was deliberate it would point strongly to a lack of fitness and propriety. If it were inadvertent, it may simply be a lack of understanding or lack of attention to detail. This raises concerns in relation to the administration of the licensing system. However, with time the Commissioner may be satisfied that the causes for concern have been addressed.
For completeness I note that it is my view that the mere reporting that DMC had emotionally and physically abused his family, without further evidence, is not sufficient to support a finding that DMC is not a fit and proper person to hold a firearms licence.
At this time I do not consider that it is in the public interest for DMC to continue to hold the licence. It follows that the decision to revoke his licence should be affirmed.

Order 1. The decision by the Commissioner of Police to revoke DMC's category ABC firearms licence is affirmed.

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: 18 September 2018

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