Doan v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-06-21

REASONS FOR DECISION

On 10 February 2021 the Applicant, John Doan applied for a Category AB firearms licence for the genuine reason of recreational hunting/vermin control. On 11 November 2021 the Respondent decided to refuse the application, on the basis that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for the Applicant to hold such a licence. The Applicant sought internal review of the decision but, when no response was received within 21 days, the internal review was taken to be finalised pursuant to s 53(9) of the Administrative Decisions Review Act 1997 (ADR Act). The Applicant then sought review by this Tribunal.

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 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 (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

The Applicant provided a letter "of apology" dated 11 January 2022, a statement dated 10 April 2022 and an affidavit affirmed on 6 June 2022. He also provided a PCYC Traffic Offender Intervention Program certificate dated 21 July 2012, drug test results dated 3 May 2022, and a copy of his NSW driver's licence. He gave evidence and was cross examined.
The Applicant also provided references from: 1. Hung Van dated 11 January 2022 2. Dr Jonathon Tuan Le dated 20 April 2022
The Respondent provided material in accordance with s 58 of the ADR Act.

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal 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 a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

Before me the Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence nor is it in the public interest that he hold such a licence. The Respondent relied on the Applicant having two prior drug offences, detailed below.

Offence: 24 March 2012

On 23 March 2012, at approximately 1.00 am, the Applicant was stopped by Police for a random roadside drug/driving test. He returned a positive result for methamphetamine ("ice"). The Applicant admitted to Police that he "took a pill". On 15 August 2012, the Applicant was found guilty in the Local Court of driving a vehicle with illicit drug present in his blood. Although proven, the charge was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (s 10 bond).
He participated in a traffic offender program and said that he had learnt from that that it is not appropriate to drink or take drugs and then drive; it is necessary to have a "Plan B" before going drinking.

Offence: 7 December 2016

When the Applicant was stopped by Police at about 10.20 pm on 7 December 2016, he was observed to appear nervous, with shaking hands and sweat beads forming on his forehead. The Applicant was searched, as was his car. Police located 0.33g of ice in a snap lock bag in his car. The Applicant denied knowing anything about the drugs and told Police he had no idea how it got there. The Applicant reportedly provided Police with false information about his criminal history, which presumably meant he denied having previously been involved with drugs. The Applicant said that he had been at a friend's house, whereas Police had information that he had attended known [but unspecified] drug premises. He was charged with possessing a prohibited drug and, on 16 January 2017, was found guilty in the Local Court of that charge. The Local Court dealt with the offence by way of a s 10 bond.
Before me the Applicant said that he told his former associates that he was not interested in doing drugs again. He did not remember having the ice and should have thrown it away. He said he took full responsibility. He noted that he had pleaded guilty to the charge, and that he had not consumed any of the drug.
In his evidence the Applicant said that he was young and silly at the time of the offences and that he had got in with the wrong crowd. Since then, he has tried to turnover a new leaf.
He was asked in cross examination if, other than the PCYC course he had undertaken any counselling or psychological support, but he said he had not. He does see his doctor regularly though, he said.
The Applicant said in his evidence that following the offence he went to Queensland, with a view to getting away from his then associates.

Is the Applicant a fit and proper person to hold a firearms licence?

The Respondent submitted that, given the Applicant's criminal history, he is not a fit and proper person to hold a firearms licence. The Applicant's non-compliance with the criminal law is of particular significance in the context of his application for a firearms licence.
Section 11(3) of the Act requires that the Tribunal be 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.
The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Applicant has a history of two minor drug-related charges, the most recent of which was now about 5.5 years ago, and for which he received a s 10 bond on each occasion. It was the Respondent's submission that the Applicant's criminal history demonstrates that the Applicant cannot be trusted to possess a firearm and comply with the strict requirements set by the Act. While I accept that the history shows a disregard for the law on two occasions in the past, it does not follow that, thereby, he cannot be trusted to possess a firearm.
The Respondent acknowledged that it may be open to the Tribunal to view the Applicant's criminal offending as historical and therefore to be of minimal significance to the present consideration. It was submitted that weight should be placed on the Applicant's criminal history, despite its age. It was observed that the Applicant two offences occurred 4 years apart, and thus, it was submitted, demonstrate the Applicant's failure to reform following the first offence. This submission however overlooks that the Applicant has not re-offended since that time, nor come to Police attention at all.
The PCYC Traffic Offender Intervention Program certificate is now over ten years old. The Respondent submitted that, despite completing the Program, in 2016 the Applicant had ice in his car. It was submitted that any knowledge the Applicant may have gained from the Program failed to prevent him from choosing to breach the law again in 2016. While I accept that criticism that the course did not deter the Applicant from offending for a second time, as I have said, since 2016, the Applicant has not offended again.
The Applicant's drug test results of 3 May 2022 (and a later test which returned the same result which was not tendered) demonstrate only that on those dates the Applicant tested negative to drugs; this does not demonstrate that the Applicant does not consume or possess illegal drugs. Nonetheless, as I understand it, traces of some drugs may continue in the bloodstream for some days. At best, the tests are of little assistance.
The Respondent was critical of the Applicant's letter of apology and his statement which, it was submitted, fail to explain how he has reformed his life since his offending in 2012 and 2016. The Applicant asserts that his "life has changed", but, it was submitted, no explanation was provided of what the Applicant has done to change his life. Similarly, the Applicant claimed to have learned "many valuable lessons" but fails to explain what the lessons are. The Respondent also submitted that the Tribunal would find the Applicant's apology letter and statement to be bald, self-serving evidence upon which minimal weight should be placed. The Respondent submitted that the Tribunal would not find that the Applicant's evidence is sufficient to demonstrate that the Applicant has reformed his character since his criminal offending in 2012 and 2016. Other than the PCYC Traffic Offender Intervention Program certificate, the Applicant's evidence fails to demonstrate how he has reformed since 2012 and 2016. In light of the deficiencies in the Applicant's evidence and the Applicant's criminal history, the Tribunal would not be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace.
The Applicant however gave evidence in relation to his present lifestyle. The Applicant said that other than going to work, he takes care of his elderly parents, with whom he lives. He goes to church on Sunday, and is the proud godfather of two boys, who he sees frequently. He assists in the care of a disabled child. He "does not want to be that person again". He has learned valuable lessons and is keeping away from his former associates. They seek him out, but he does not want to have anything to do with them, including those who claim to have "reformed". He is embarrassed by his past and does not want to be asked a lot of questions by Police in front of his parents, and his godchildren. He does not even have any speeding charges.
There was no contention by the Respondent that, other than the risk of leading the Applicant into further drug use, his former associates, were in any way pressuring the Applicant to obtain a firearms licence, so that they could illegally access his firearms or ammunition.

References

Mr Van wrote that he has known the Applicant for 7 years and his family for 15 years. He had read the refusal decision and referred to the Applicant's "past mistakes". The Respondent submitted that there is no evidence that Mr Van was aware of the precise circumstances of the Applicant's two offences, but I consider the decision under review refers in sufficient detail to those offences to adequately inform Mr Van of the circumstances: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].
Dr Tuan Le wrote that the Applicant has been his patient for 19 years. He wrote that his patient hardly drinks any alcohol and, as far as he knew, had not used any illicit drugs for nearly 10 years. Putting aside the 2016 matter, where the Applicant said he did not consume any ice, the evidence is that the Applicant consumed ice in March 2012, and, presumably it is to that which the doctor refers. It was unclear though if the doctor is aware of the circumstances of the Applicant's two offences. I accept though that he was able to provide an account of the Applicant's present medical condition, in particular that, as far as he knew, the Applicant has not consumed illicit drugs for some time.

Conclusion as to fit and proper person

In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence.
The Applicant's offences were now 10 and 5.5 years ago respectively. He has not come to Police attention at all in the intervening years. He has shown contrition for those offences and has sought to distance himself from his previous associates. His evidence was of a presently conservative lifestyle.
For these reasons, I am comfortably 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.

Public interest

The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that "the public interest" is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Respondent relied on the Applicant's criminal history in its submission in relation to the public interest.
The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal's decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. It is clear though that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence. I do not consider there to be sufficient evidence to find that there is real and appreciable risk to public safety if the Applicant were to hold a firearms licence.

Conclusion

The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". For the reasons discussed in relation to that Applicant's fitness and propriety, I am so satisfied.
In all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold a firearms licence.

DECISION 1. The decision of the Respondent to refuse the Applicant's application for a firearms licence is set aside. 2. A category AB firearms licence is to be issued to the Applicant.

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: 05 July 2022

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