Dubedat v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-03-20|Before: Health J

Pursuant to s 64(1)(c) of the CAT Act, the publication of: any evidence given during the Private Hearing, the Confidential Document and the Confidential Statement andmatters contained in the Confidential Document and the Confidential Statement, is prohibited; Pursuant to s 64(1)(d) of the CAT Act, the disclosure of any evidence given during the Private Hearing, the Confidential Document and the Confidential Statement and matters contained in the Confidential Document and the Confidential Statement, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal; Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.

REASONS FOR DECISION

The Applicant, Benjamin Dubedat held a minor's firearms licence while he was at school, some years ago. On 21 June 2021 he applied for a probationary pistol licence. On 25 October 2021 the Respondent decided to refuse the application, on the basis that the Applicant was considered not to be a fit and proper person to hold a firearms licence and that it is not in the public interest for him to hold a firearms licence.

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.
The Act, in setting out restrictions on the issue of licences, provides, at s 11, relevantly: … (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 … (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. …

Confidentiality application

Prior to the hearing the Respondent sought confidentiality orders with respect to material it lodged with the Tribunal on 8 March 2023. Section 58 of the Administrative Decisions Review Act 1997 (ADR Act) obliges the Respondent to file and serve, amongst other things, a copy of every document that is in the possession or under its control, that it considers relevant to the determination of the application by the Tribunal. Section 59 of the ADR Act gives the Tribunal the power to direct that an administrator not be required to lodge certain documents as would otherwise be required by s 58 of that Act. The Respondent sought Orders pursuant to ss 49, 59 and 64(1)(b), (c), (and (d) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The Applicant objected to the Respondent relying on the material over which confidentiality was claimed, and said that the Orders had been sought well after the date for filing the s 58 documents and therefore the Applicant was prejudiced in his preparation of his case.
Section 49 of the CAT Act provides for the holding of confidential hearings, and I heard the Respondent's submission in relation to the confidentiality application in the absence of the Applicant and his solicitor.
Confidentiality orders relating to evidence and proceedings are regulated by s 64 of the CAT Act, which relevantly provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: … (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. …
In support of the confidentiality application, the Commissioner relied on the statement of Senior Constable Michael Hickman, dated 14 March 2023.
[NOT FOR PUBLICATION]
Based on his experience, and after reviewing the confidential material Senior Constable Hickman wrote in his statement to the effect that disclosure of the confidential material would or could: 1. Alert the Applicant and others to info that Police have gathered and may prejudice future investigations and enquiries 2. identify confidential sources of information and potentially place identified persons at risk of harm 3. prejudice the ongoing provision of confidential information to Police and, in particular, undermine confidence in the Police' capacity to maintain confidentiality of information 4. expose Police methodology
In reaching its decision in the substantive matter, the Tribunal 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) CAT Act. However, s 64(1)(d) CAT Act provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." "Desirable" is to be interpreted with regard to the basic common law precept of open justice: see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]; see also CYL v YZA [2017] NSWCATAP 105. I am, of course, mindful of the discretionary nature of s 64 of the CAT Act and that the question for the Tribunal is whether the circumstances are sufficient for the exercise of its discretion in circumstances where s 64 itself does not provide guidance as to how that discretion should be exercised. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether an order under s 64(1) of the CAT Act should be made is the presumption set out in s 49 that proceedings are to be conducted in public, so that, in accordance with the rules of procedural fairness, a party knows the case it has to meet. The solicitor for the Applicant sought information as to the type of information over which the Orders were sought. With the consent of the Respondent, I invited the Applicant's solicitor's attention to Police reports as to the Applicant's conduct in the s 58 documents.
In its consideration of whether to make an order under s 59 of the ADR Act or s 64 of the CAT Act, the Tribunal must turn its mind to whether it would be appropriate to make an order prohibiting disclosure of the documents because of "the confidential nature" of those documents or, more broadly, "for any other reason": see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3]. Section 64(1) of the CAT Act implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 at [24].
I consider that the evidence is sufficient to satisfy me that the circumstances at hand are sufficiently "special" so as to justify the making of confidentiality orders sought by the Commissioner, for the following reasons.
Firstly, there is significant public interest in protecting police investigative techniques: see for example Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [44].
Secondly, there can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69].
[NOT FOR PUBLICATION]

Conclusion in relation to confidentiality

The evidence of Senior Constable Hickman and the Respondent's submissions make a cogent case for the grant of confidentiality and I will make the Orders, virtually as asked.

CONFIDENTIALITY ORDERS 1. Pursuant to s 49 of the CAT Act, the hearing of the Application in the substantive matter insofar as it relates to the Confidential Document described in the Confidential Statement be conducted in the absence of the Applicant, the legal representative for the Applicant, and the public (Private Hearing); 2. Pursuant to s 59 of the ADR Act, the Commissioner is not required to lodge a copy of the Confidential Document described in the Confidential Statement; 3. Pursuant to s 64(1)(c) of the CAT Act, the publication of: 1. any evidence given during the Private Hearing, 2. the Confidential Document and the Confidential Statement and 3. matters contained in the Confidential Document and the Confidential Statement, is prohibited; 1. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of 1. any evidence given during the Private Hearing, 2. the Confidential Document and the Confidential Statement and 3. matters contained in the Confidential Document and the Confidential Statement, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal; 1. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.

In addition to the Orders set out above, pursuant to ss 64(1)(c) and (d) of the CAT Act, the contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.

Evidence

The Applicant gave evidence and was cross examined. He also relied on a report dated 23 December 2021 by Ivanka Manoski, Forensic Psychologist. Ms Manoski also gave evidence and was cross examined.
The Respondent provided material in accordance with s 58 of the ADR Act, and later, supplementary material. The Applicant said in his evidence that he had "flicked through" the Respondent's material.
The Respondent also relied on the confidential material referred to above. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[NOT FOR PUBLICATION]", and Orders are made accordingly: s 64 of CAT Act.
The solicitors for both parties provided written submissions.

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 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].

On what basis was the Applicant's licence application refused?

In refusing the Applicant's application the delegate considered that the Applicant's actions, as recorded in Police Events, of damaging another person's property and sending text messages demanding payment or threatening retribution, indicate that he is a person who lacks impulse control.
The Internal Review Statement of Reasons relied on: 1. reports alleging threatening and intimidating conduct by the Applicant involving a number of different persons, and such conduct is not aligned with what is expected of a person who seeks the privilege of a firearms licence; 2. the Applicant has been charged with serious offences which are prescribed by the Firearms Regulation 2017, such charges being dismissed on the condition that he was discharged into care in accordance with s32 of the (now repealed) Mental Health (Forensic Provisions) Act 1990 (MH Act) and 3. a number of concerns relating to the Applicant's mental health, including: 1. the Applicant's diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome, 2. the Applicant's denial of having a history of mental health difficulties despite his having sought criminal charges to be dismissed under the MH Act, 3. an inconsistency between the Applicant's stated preference of avoiding difficult situations and the reports made to Police of his threatening and intimidating behaviour, and 4. a recommendation by a forensic psychologist that the Applicant be treated by a psychologist to assist in the strengthening of his consequential thinking.
Before me, the Respondent relied on the Applicant's history, described as "threatening and intimidating conduct"; his criminal history; his mental health; and issues arising from the Applicant's evidence.

History of alleged threatening and intimidating conduct

The Respondent pointed to several incidents involving the Applicant allegedly sending threatening and intimidating messages to persons demanding money he said he was owed.

Interaction with Kenneth Bullen - August 2016 - March 2017

Mr Bullen had employed the Applicant as an apprentice for, the Applicant said, about 5 years, until the end of 2014, when the Applicant resigned. The Applicant said in his evidence that Mr Bullen had been upset when he had left a year after his apprenticeship ended. On 16 March 2017, Mr Bullen reported to Police that, since 1 August 2016, the Applicant had been harassing him with messages and phone calls. When contacted by Police, the Applicant denied that he had been harassing Mr Bullen but said that he would cease all contact and there would be no further issues. In his evidence the Applicant denied, at first that he had sent Mr Bullen a threatening message and made threatening phone calls. He said Mr Bullen's secretary had sent through a work authority and he was trying to get more information about the job. Later in his evidence the Applicant said that he could have sent Mr Bullen messages, but did not know what they would have been about.
The Applicant said that he did not know if Mr Bullen had contacted the Police but that he had, although he could not recall when that was. Police records note that, on 12 June 2017, the Applicant complained that, following and alteration with Mr Bullen at the marina, his car had been damaged by "keying" for which he blamed Mr Bullen but Police were not able to find any link between Mr Bullen and the alleged damage. He said Mr Bullen had gone to the marina where the Applicant was working and was "screaming" at him and blamed him, the Applicant said, for the failure of his marriage. The Applicant said Mr Bullen was escorted from the premises. Police records show Mr Bullen had attended Police and claimed the Applicant had provided fake invoices and there had been financial problems which caused the breakdown of his marriage.

Interaction with a client, "David" July 2018 - January 2019

On 9 August 2018 David complained to Police that the Applicant had been threatening and intimidating him. On 30 July 2018, the Applicant had responded to David's Gumtree advertisement for demolition and excavation work, and David told Police, they agreed as to the required work, the time frame and the cost. The Applicant reportedly only completed one-third of the task and David was unable to contact him, despite multiple attempts. David then received a message from the Applicant informing him that he no longer could do the work and the Applicant demanded $5,500 which he said he was owed. He allegedly threatened David that he would engage a debt collector if he did not pay.
In his evidence the Applicant said that he thought he had estimated that the work would take a couple of weeks, depending on the weather. He said he thought he completed about three quarters of the task. He denied telling David that he could no longer do the work; instead, he said, he asked for $3500 part payment, as he had already paid for the skip and a labourer. He said in his evidence that David had then paid for the skip, albeit, the Applicant claimed, using the Applicant's credit card which was "on file". He could not recall if he told the Police about the unauthorised use of his credit card, or if he just told friends.
The Applicant was alleged to have posted a 1/5 star Facebook review on David's business page stating 'this person does not pay his bills he is a Shonk', but in his evidence said he could not remember doing that.
On 6 August 2018 David reportedly received a further message from the Applicant stating: At the moment if you don't Pay my bills, it stands, I am going to put it ait over Facebook in three days and contact radio stations, I have contacted police to charge you because you tried to use my credit card to pay for the skip bin, the manager has made me aware of this and she is doing me a statement, if you don't pay this today I won't take this further, I promise I won't go away till you pay.
Later the same day the Applicant then posted on Facebook: 'Who is good at debt collection and want to make a quick 500', with images of David, saying, 'this is the guy'. Some extremely serious comments were made on the Applicant's post, including 'kill him cut him up burn him toucher (sic) him'. The Applicant said in cross examination that he made the post with the intention that "a lawyer or someone" would respond, and said he had posted requests for legal advice before which had drawn responses.
It was then that David went to the Police. After Police spoke to the Applicant on 4 September 2018, he removed his advertisement for a debt collector. The Police did not take any action, regarding the matter as a civil dispute that the parties should resolve through their legal representatives. In cross examination however the Applicant said he had deleted it immediately when he saw the violent responses he received. He said, in relation to the advertisement, that he had "worded it badly".
On 7 September 2018 Police emailed the Applicant and requested that he not contact David other than through a legal representative. He said in cross examination that he then sought a lawyer to write a letter of demand, but then the solicitor said he did not want to take the case, and returned his fee.
Contrary to the Police request, on 29 January 2019 in a further message to David, the Applicant, according to Police records, wrote: … As this is a major case of discrimination and I've already written this debt off I'm giving you one more chance which I definitely don't need to do. If we don't receive $10000 in our account by Friday 1st February at 5pm. I'll post every correspondence we have had online for the world to see what sort of asshole you are and to make up their own mind. ... FYI send this to your family of lawyers or ring the cops or threaten me or do whatever you like unless the money is in the account I'm going public. The balls in your court, there is no need to respond to this message as words wont change the only payment.'
David again contacted the Police.
In cross examination the Applicant said he had no recollection of the email. He said he did not recall having contacted David again after the Police told him not to.

Interaction with former employer, Ross Cruickshank: December 2021 - February 2023

The s 58 material referred to a complaint made by, rather than about, the Applicant about Mr Cruickshank in December 2021. The Applicant, who had worked for Mr Cruickshank for 8-9 months, complained to Police that Mr Cruickshank had waited for him in his car outside the Applicant's partner's workplace and had followed him. The Applicant told Police that there was an ongoing dispute about workers compensation, and unpaid annual leave, and that solicitors were engaged in mediation. I did not understand the Respondent to rely on this Event, but the Applicant, nonetheless addressed the relationship with Mr Cruickshank in his evidence. He said that he was on workers compensation for 3 weeks after injuring his finger. Mr Cruickshank had paid "everything" except one week's annual leave (although the Applicant had told Police he was owed 105 hours annual leave). In December 2022 the Applicant's partner wrote to Mr Cruickshank on the Applicant's behalf to the effect that if he was not paid he would go "Small Claims". He received no reply. He said that in mid February 2023 he was loading a boat at a boat ramp and Mr Cruickshank came up to him. He said he moved away but Mr Cruickshank followed him. He said he phoned 000 and told Mr Cruickshank that he was on the phone to Police and that he should leave. He said he told Mr Cruickshank to get his lawyer to contact him. He said he went to Hornsby Police and was told to take out an AVO against Mr Cruickshank, as they could do nothing unless he had actually been hurt.
As to the Applicant's conflict with Mr Cruickshank, the Applicant does not appear to have been the instigator of the dispute.
In relation to the Applicant's present business arrangements generally, in his evidence the Applicant said he had gone into business for himself as a marine mechanic in 2014 and he has been working in that field, on and off since that time. He learnt through "trial and error" how to manage his accounts, and had learned "a bit" from his father's business. He said that for about 3 years his partner has done some of the book-keeping and that she writes "just about everything external", by which I understood him to mean most client and supplier contact. He said he now tries to obtain some money "up front" for materials. In order to protect himself against debts he provides a quote and seeks acceptance by text. There are fixed payment terms. He said he would like to grow his business, which is mainly work on boats.

Boat and trailer (2018 charges)

On 14 December 2017, a report was made to Police that a relatively new grey/black Highfield rigid inflatable boat, valued at about $45,000, had been stolen from a jetty in Castlecrag sometime between 6:00pm on 12 December 2017 and 8:00am on 14 December 2017. The boat was located near the Applicant's home on 7 January 2018, and its registration numbers had been altered. The Applicant claimed that he had purchased the boat for $20,000 in cash. Police required the Applicant to furnish evidence about the purchase and the details of person from whom he had purchased it. The Applicant was unable to do so.
On 10 April 2018, the Applicant reportedly provided Police with vague information about how he met an unknown man at an unknown boat ramp at The Entrance and spontaneously entered into a conversation about boats and that he wanted to buy one. The man showed the Applicant a photograph of a boat that he was selling. The Applicant returned two days later with $18,000 in cash, although earlier the Applicant had reported having paid $20,000 to the man at the boat ramp. He provided Police with a handwritten receipt allegedly provided by the man from whom he purchased the boat and a mobile phone number, which by that time, had been disconnected.
The Applicant said he towed the boat home from the Central Coast on the trailer that he had bought from a person one of his customers had 'put him onto' who lived somewhere near Ingleside or Belrose. In cross examination though, he could not recall if he collected the boat at The Entrance.
In his evidence the Applicant said that he had been working at Port Stephens for 3-4 days. Contrary to his earlier account, he said that while there, "someone" told him there was a friend selling a boat, and he obtained their phone number. When interviewed by Police on 21 March 2018 the Applicant said that he had stopped at The Entrance on the way home from Port Stephens and got talking to a guy at the boat ramp who told him he had a boat for sale and showed him a photograph. He said the man had showed him "importation papers" and the Applicant said that he did not want to "stumble into a cartel". In cross examination he said he meant that he did not want to get involved with people who sold stolen goods. He said that at the time he did not know the boat was stolen. He recalled he did a 5-minute pre-purchase inspection; he said if the boat could plane, he was confident it was in good working order. He did not think it unusual that a transaction would occur spontaneously at a boat ramp; a lot of boat sales occur at boat ramps and at service stations. He also was unconcerned that it did not appear to be registered and thought he could just go to "RMS" and "do a statutory declaration". However, by the time the Police interviewed him 3-4 months after he acquired the boat, he had still not registered it.
He said in his evidence that, as a marine mechanic, he did not know the value of boats, but thought the inflatable might have been worth about $25,000, although the price can vary considerably. While he was familiar with buying parts for boats in the course of his role, he did not know how much boats cost. He could not remember when he paid for the boat, but told Police he paid about a week later; in contrast, he reportedly told Police that he had withdrawn the money from his bank over a 3-week period and that the money was held in his safe at his friend's home where he was living at the time.
He said he collected the boat with his "workshop trailer", which he told Police, he had acquired about a week or a month beforehand. The trailer also was stolen. The trailer was unregistered; he conceded that he had transferred the registration plates from his jet ski trailer onto the boat trailer, because he said, he could not afford the $400 per annum registration fee for the boat trailer. He claimed this was a common practice in the boat repair industry. He said when he acquired the trailer for about $1000, he had undertaken a records check, but had not done so for the boat for which he paid much more - $18-20,000. He said he could not find a "boat code" but did not think that was unusual because he was told the boat had been imported.
On 18 May 2018, the Applicant was charged with the 3 offences: 'Induce other to accept non-genuine unique identifier-T2', 'Goods in personal custody suspected being stolen (vessel)' and 'Goods In personal custody suspected being stolen (M/V)'.
On 29 August 2018 the charges were dismissed in Manly Local Court, on the condition that the Applicant was discharged into care in accordance with s 32(3) of the MH Act. The Applicant had relied on a report from a (unspecified) psychiatrist.

Destroy property a Colebee: May 2020

The Applicant had been hired to do some landscaping at a property at Colebee. There was a dispute about payment for the services. The Applicant allegedly threatened the owner of the property that he would dump rubbish in the driveway and harass the owner's tenants.
On 7 May 2020, the Applicant was recorded on a neighbour's CCTV as attending the property and cutting a stormwater pipe with a saw. The Applicant was also seen by a neighbour dumping rubbish on the garden bed and damaging the plants and the grass.
In cross examination the Applicant said that the owner's report to Police was malicious. He said he tipped 10 pieces of timber onto the dirt behind the letterbox and had sent the owner an email that he had returned her rubbish, and that that was to be the end of it. He said the Police had advised him to return the rubbish, although there was no evidence of such advice.
When Police spoke to the Applicant he admitted dumping rubbish on the property, but said it was rubbish he had removed at the owners' request, and he had returned it on the basis that the owners had not paid for that service. He said in cross examination that he cut and removed the stormwater pipe which was his, as he had not been paid for the work he had carried out.
The Applicant said in cross examination that he had complained to Police that the owner had used his excavator for some hours. A screenshot of messages with the owner referred to an earlier allegation that the owner's contractors had used the equipment for 20 minutes, but now he claimed it had been used for 3.37 minutes. When asked in cross examination about the messages, the Applicant said he did not think the owner had a phone. He said, although a Police officer recorded his complaint, no Event was created.
On 10 December 2020, the Applicant was charged with 'destroy or damage property <=$2000-T2'. The charge, however, was withdrawn. The Applicant understood the withdrawal was that due to a lack of evidence as the charge related to destruction of plants and grass in an area where only dirt/mulch was present. In cross examination he said that the prosecutor had "left the force" and that it had all been "poorly put together". No independent information was available about the reasons the charge was withdrawn.

Applicant's mental health

The Applicant's mental health was the basis on which the 2018 charges were dismissed. I did not have before me the psychiatric report which the Applicant relied on when those charges were heard.
Ms Manoksi was consulted by the Applicant to respond to the request from the Firearms Registry to provide information in relation to his mental health. The consultation was conducted, over approximately two hours and 15 minutes in a semi-structured one-on-one in person interview. Ms Manoski had been provided with the material accessed by the Applicant following an application under the GIPA Act which included information about the malicious damage charge which had been withdrawn. She also had a copy of correspondence between the Applicant and Respondent in relation to his licence application, and the letter to the Applicant's GP. She had a Personality Assessment Inventory and a Depression Anxiety Stress Scales (DASS) 21 which had been completed by another psychologist, at the Applicant's request, on 3 November 2021. She requested the psychiatric report which the Applicant relied on when the 2018 charges were dismissed, but he told her the report was unavailable.
The Applicant told Ms Manoski that he had been diagnosed with ADHD and Asperger's Syndrome (low level on the spectrum in relation to difficulties with functioning) by a paediatrician when he was in Year 5 or 6 at school and that he saw a psychiatrist as an adult but has since stopped seeing him. In addition, he had weaned himself off medication, as he thought that they were not helping him. The Applicant said in his evidence that he had slowly reduced his medication, without medical guidance; he said he did not have the funds to pay $75 per month for the medication.
The Applicant told Ms Manoski that he does not having general impulsiveness or a difficulty with emotional regulation. He said that he does not become easily angered or upset, and does not hold grudges. He denied any current or historical homicidal ideation or revenge fantasies. He further said that he prefers to avoid confrontation and does not have an interpersonally aggressive style. Ms Manoski found that '[i]n considering risk factors that may increase Mr Dubedat's risk of engagement in violence, including firearm related violence, there appears to be a lack of such risk factors' and the Applicant 'holds generally prosocial attitudes'. She considered that he 'presents as a relatively stable individual who in committing offences, believed that he was not committing an offence'.
Ms Manoski noted from the Personality Assessment Inventory completed by the Applicant that he had some defensiveness about particular personal shortcomings as well as an exaggeration of certain problems. Ms Manoski noted a deficiency in the Applicant's consequential thinking, which contradicted what the Applicant self-reported. He tended to present himself in a favourable light, which could result in a reluctance to admit to minor faults and a minimization of problems or other areas where functioning might be less than optimal. Ms Manoski considered that he might lack personal insight into how his interactions may impact others. His limited insight may lead to not admitting to negative consequences associated with his behaviour.
In cross examination Ms Manoski said she was unaware that the Applicant had come to Police attention for a number of incidents in which he was alleged to have sent threatening messages. She agreed that, had she been aware of that conduct her view in relation to his ability to deal with conflict would be altered. She regarded it as of concern that the Applicant failed to tell her about these matters. As to his "advertisement" for a "debt collector" she expressed concern that he was inciting that kind of response. She expressed concern as to what may have motivated him to conceal these matters and present himself in a more favourable light. She was referred to the Police instruction to him not to contact David again but he nonetheless did so. She expressed concern of his inability to follow Police rules or directions.
In her evidence Ms Manoski expressed concern that relevant information had been withheld from her, and that the Applicant had endeavoured to present himself in a favourable light and had been evasive; she noted that he had used threats and clearly held grudges, and this was contrary to his self-report. She considered that he may not be aware of the impact some of the things he does have on others. She considered that the risk, in the context of a firearms licence had increased as a result of the new information with which she had been provided.

Is the Applicant a fit and proper person to hold 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 Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.
The Applicant said he had started using rifles while at school, on a minors permit, and now seeks a firearms licence to pursue a hobby of pistol shooting with his partner. The Applicant's private interest in pursuing a hobby must, however, be subordinate to the public safety concerns which might arise from his use and possession and firearms.
[NOT FOR PUBLICATION]
The incidents referred to above reveal a pattern of threatening and intimidating behaviour by the Applicant towards his former business associates. While the Applicant, as was submitted on his behalf, was a young man, who was on "a steep learning curve" in commencing the operation of his business, it remains that between 2016 and 2020 he engaged in conduct which the recipients found sufficiently intimidating that they brought his conduct to the attention of Police. The complaints, for the most part, referred to multiple and sustained contacts which, I accept, they found intimidatory. The Applicant may have been naïve in business matters, but that does not excuse his poor conduct. I accept the Applicant's evidence that now has his partner undertake the customer contact, to, according to his representative, "moderate" his demands.
I agree with the Respondent's submission that the Applicant's behaviour towards business associates is not consistent with the behaviour that the public would expect of someone who has the privilege of holding a firearms licence. I accept the Applicant's evidence that now he has his partner undertake the customer contact, but this is properly regarded, in my view, as their solution to the problem they have identified in his inability to deal appropriately with customers; it does not mean that he has matured out of his former unacceptable conduct, merely, that there is now a work-around. It is doubtful that the Applicant's partner can preclude all contact with customers.
I also agree that the public would rightly be concerned about what someone who may be given to this behaviour might again adopt overly-robust means to encourage payment of debts if he were authorised to use and possess firearms.
I accept that the Applicant has not been convicted of any offences. Nevertheless, it is well established in administrative review applications of firearms licences that it is an applicant's conduct, not their conviction that is of concern to the Tribunal. Notwithstanding the dismissal of the charges against the Applicant, the Tribunal is to take into account matters indicating criminal conduct even though the Applicant was not convicted of the offences: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. See also Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60].
In relation to the 2018 charges, the Applicant has given different accounts of how he came to buy the boat. His explanation of co-incidentally meeting a person on a boat ramp who had a boat for sale was simply implausible. Even the purchase price, and when he had paid for the boat, was unclear. He professed to be unaware of boat values but his evidence before me was that the price he paid was conservative for that type of boat. He was unperturbed that the boat was unregistered and that registration could be achieved by the completion of a statutory declaration although he did not know what this entailed; and at the time of apprehension, he had taken no steps towards registration. As to the trailer, his evidence was similarly confused as to its acquisition. He was clear, though, that he transferred the trailer plates from his jet ski trailer onto the boat trailer; his view was that this was a common practice in the marine repair industry and he had no qualms about the practice, claiming the annual trailer registration fee of $400 was too high. I do not accept that his conduct in relation to the acquisition of the boat and the trailer can be downplayed as naivety. I do not know on what basis the psychiatrist may have explained his conduct, sufficient to persuade the Magistrate to dismiss the charges.
I am not prepared to excuse the Applicant's conduct with respect to the acquisition of the boat and trailer. The conduct complained of raises serious concerns about the Applicant's respect for the law.
The Respondent referred to the Applicant's diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome as a feature relevant to the refusal of his firearms licence application. I do not consider the mere fact of an ADHD diagnosis, nor the diagnosis of Asperger's Syndrome to be, of themselves, determinative, without psychiatric evidence as to how the Applicant is affected by those conditions. Again, this confirms my concern about the absence of psychiatric evidence.
The only evidence of a psychiatrist or psychological nature was Ms Manoski's report which was based on only one interview, and her reliance largely on the Applicant's self-report. Significantly, she also did not have the psychiatric evidence arranged for the purposes of the 2018 charges. I also did not have that important material before me. While Jones v Dunkel (1959) 101 CLR 98 does not apply in Tribunal proceedings, a failure to lead evidence impacts on the case that is presented to the Tribunal: Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [46]. Suffice to say, the evidence of the psychiatrist was sufficient to persuade the presiding Magistrate that the charges should not result in a conviction and that the Applicant's criminal conduct had been affected by mental health issues. It would have been helpful to have been able to make some assessment, based on the Applicant's evidence before me, and the evidence of Ms Manoski, whether the Applicant's mental health has improved since that time.
Even with the limited material available to her, and based on the Applicant's self-report, Ms Manoski found the Applicant to have a deficiency in the consequential thinking. In particular, it is highly inconsistent with evidence to hand for the Applicant to be described as not impulsive, not having difficulty with emotional regulation, not becoming easily angered or upset, not holding grudges, and not having an interpersonally aggressive style.
Ms Manoski did not have full information with respect to the Applicant's conduct which had led to charges against him, and, her report must be viewed with caution: see Director-General, Ministry of Transport v FV(GD) [2008] NSWADTAP 60.
The Respondent was critical of the Applicant having corresponded with the Firearms Registry in an email dated 10 February 2022: I firmly believe the refusal of my application was processed in relation after I was left with no choice but to contact Professional Standards when the registry refused to respond to phone calls or emails. I believe the refusal was a retaliation because I was mailed a request for information Thursday (21/11/21), and received the refusal notice via email on the following Monday (25/11/21). This was not a reasonable time frame within which I could get an evaluation as requested, therefore the only alternate explanation is retaliation.
In the same email, the Applicant threatened civil proceedings against the Firearms Registry and to refer the matter to the Law Enforcement Conduct Commission. He alleged the refusal was in "retaliation" for his complaints about the delay. From what I could make out of the history of the application, the Applicant applied for a firearms licence on 21 June 2021. On 27 July 2021 he was requested to supply medical information which would address a risk assessment. On 11 September 2021 he raised concerns with Police Professional Standards about the delay in processing his application, especially as his partner, who had lodged her application at the same time, received her licence approval on 2 August 2021. Unsuccessful attempts appear to have been made to contact him. On 16 October 2021 he wrote again to Professional Standards. His application was refused on 25 October 2021, some 4 months after he made his application. On 21 November 2021 the Applicant sought internal review. He provided Ms Manoski's report on 21 November 2021. The internal review was not dealt with until 29 September 2022, some 10 months after the application for internal review, and 9 months after he had provided Ms Manoski's report. He sought progress reports and was informed on 16 February 2022 and 6 April 2022, to the effect that it was still in the queue. Section 53(9)(b) of the ADR Act anticipates that internal reviews should be concluded within 21 days, and if they are not, direct review by this Tribunal can be sought by an applicant. It was open to the Applicant to take that course, but, he was nonetheless entitled to press for an outcome. I do not consider that the Applicant acted unreasonably in agitating for a response to his application or to the internal review. Indeed, Ms Manoski gave evidence that it was reasonable for the Applicant to be frustrated when consideration of his application had taken 10 months. Consequently, I place no weight on the material relied on by the Respondent in relation to Applicant's protestations about the delay. There was no evidence that the delay and the subsequent refusal of the Applicant's application were in retaliation for the Applicant's complaints. While his allegation of "retaliation" may have been misplaced, I am prepared to accept that this was a manifestation of his legitimate frustration.
I have expressed my concerns about the Applicant's history of threatening and intimidating conduct, his criminal conduct and his mental health. I am particularly further concerned that he appeared to have attempted to mislead Ms Manoksi so as to portray himself in a more favourable light in order to advance his case.
For these reasons, I am not 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. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when it can be in the public interest for an applicant to hold such a licence. Nonetheless I turned to briefly consider the "public interest".
The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be 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 Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. 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.
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". I cannot be so satisfied.

Conclusion

My conclusion is therefore that the Applicant is not a fit and proper person to hold a firearms licence, and that it would be contrary to the public interest for him to hold a licence at this time. This does not, of course, preclude him from making another application.

DECISION

The decision under review 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: 19 April 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (20 paragraphs)

Parties

Cases Cited (21)