Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bilanenko v Commissioner of Police [2022] NSWCATAD 76
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Bilanenko v Commissioner of Police [2022] NSWCATAD 76Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Elley v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 354
Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Johnston v Commissioner of Police [2021] NSWCATAD 231
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 106
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (17 paragraphs)
[1]
lice Force [2014] NSWCATAP 10;
Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426;
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184;
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149;
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Texts Cited: Nil
Category: Principal judgment
Parties: Donald M Elley (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Solicitors:
J Sutton Associates (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2022/00181745
Publication restriction: See above.
[2]
reasons for decision
The applicant Mr Donald McLean Elley applied to this tribunal on 21 June 2022 for review of a decision by the respondent Commissioner to refuse his application for a category AB firearms licence for which he had applied on 14 April 2022. The refusal was affirmed following an internal review on 17 June 2022.
The applicant had been authorised for firearms intermittently for a total period of approximately seven years since first being authorised on 29 June 2011. During that time his licence had been suspended on three occasions and had been revoked on 13 May 2016 that revocation being set aside by this tribunal on 30 November 2017. His licence was again revoked on 20 February 2020.
On 2 April 2019 at Coffs Harbour Local Court he was found not guilty after hearing with respect to charges for offences of destroying or damaging property and assault occasioning actual bodily harm. He was, however, found guilty of failing to keep a firearm safely-pistol and was sentenced to a 12-month conditional release order (CRO) without conviction pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
His licence had been revoked on 20 February 2020 because he was subject to the CRO, and that revocation was affirmed following an internal review on 6 April 2020. He then reapplied for a category AB licence on 14 April 2022 and the refusal of that application is the subject of the present application for review.
On 16 September 2022, Little SM made certain confidentiality orders pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act) and s 49(2) and s 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The matter came on for hearing on 27 October 2022. In addition to the open hearing, a confidential hearing was held pursuant to s 49(2) of the CAT Act.
[3]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license must not be issued unless "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".
Section 11(7) states that "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".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[4]
The evidence
The respondent adduced no oral evidence but instead relied on the documentary material, being the s 58 documents (exhibit R1) and confidential exhibit CR2, and on cross-examination of the applicant.
[5]
Mr Donald Elley
At the hearing the applicant adopted his affidavit sworn on 21 September 2022 (exhibit A1) in which he stated that he has never been convicted of a criminal offence, and a final apprehended violence order (AVO) has never been made against him. Unfortunately, several meritless and vexatious applications for AVO's had been brought against him, all of which had been withdrawn or dismissed, although on the basis of the application itself, interim orders had from time to time been made.
He had in the past refused to be bullied by his ex-wife M***** and persons under her influence. Refusing to stand down when bullied had led those persons to abusing the court process for their own purposes. The statement of reasons for the internal review decision alleged non-specific cases of "aggressive, verbally abusive and threatening behaviour". It was impossible to respond to such a broad allegation other than to say that in no way does it describe his personality or his interactions with others. No magistrate had ever made a finding that he had behaved in that manner.
An application by him for an AVO against his ex-wife was listed for hearing on 22 September 2022, but the date had been vacated because of a public holiday gazetted for that date. He was the repeated victim of significant domestic violence at the hands of his ex-wife during the marriage. That included incidents where he was injured, incidents in the presence of their children and other incidents where he genuinely felt himself to be in serious personal danger.
He had only ever been before a court in respect of one matter where there was a finding of guilt against him. The single charge of "not keep firearm safely" related to some confusion on his part in relation to the proper storage of the firearms he was licensed to keep. They were safely and correctly stored in a safe that was locked and the keys appropriately managed by him. His offence was that the safe was not bolted to the ground, but rather was on four small wheels that enabled it to be moved around the room.
While the safe was capable of being wheeled around the room, it weighed approximately 400 kg and it was impossible to remove it from the room without specialized machinery. It could not be wheeled out of its location at any given time as stated in the internal review reasons.
He separated from his wife in 2018. As part of the separation, his former wife conducted a deliberate campaign to deprive him of access to his sons, then aged three and four. He was traumatized by that conduct and experienced a brief period of depression. For a short period he voluntarily spent time in hospital treatment until he felt healthy in his emotions again.
[6]
Confidential hearing
A confidential hearing was held pursuant to s 49(2) of the CAT Act.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[7]
Applicant's submissions
Mr Tiedt's submissions on behalf of the applicant were made orally at the hearing, and also in his written submissions dated 27 September 2022 in the present matter and 13 May 2022 in connexion with the applicant's request for an internal review (exhibit R1, pp 20 - 24). On the issue of fitness and propriety, Mr Tiedt submitted that the evidence in relation to domestic violence and the applicant's relations with police would be relevant if they had been proved, but there was insufficient evidence to do so.
First, the s 58 documents were lacking in substance as regards the AVOs, recording merely the fact of the issuance of IAVOs but giving little factual background to them. Mere assertions were insufficient. At all events, however, the courts had dismissed all domestic violence proceedings against the applicant, or they had been withdrawn. The assertions by M***** had been rejected by the courts as being of little weight.
Mr Tiedt submitted that the confidential material [in confidential exhibit CR2] probably consisted of entries in the police COPS system. The s 59 orders had left it to this tribunal to decide on admissibility. It would be unfair if the applicant was not able to be present when such evidence was adduced and he had no opportunity to cross-examine. Materials such as COPS reports needed to be treated with caution because they were unsworn, were not put to the applicant and there was no opportunity for cross-examination. There was little of substance in the 58 documents.
Currently there is pending an AVO application by the applicant himself against his ex-wife. It is uncontradicted that he has been a victim of domestic violence. The marriage is now ended, they have separated and the custody issue has been resolved. He has access every second weekend. A marriage breakdown was not enough basis for saying the applicant was not a fit and proper person. It was a very common problem. He had never misused firearms in relation to her in a difficult time.
The respondent had cited Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149, [31], where the tribunal had found that in relation to public safety that there was no basis for differentiating between conduct of the applicant and conduct of another. But in that case the son was a serious offender who had been convicted of serious drug offences and who as a condition of parole would be living with the applicant. But in the present case the applicant and his ex-wife were not together.
[8]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[9]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides that a licence must not be issued unless "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".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[10]
History of domestic violence allegations and aggressive behaviour
The first ground on which the respondent relies as evidence of lack of fitness and propriety is what it describes as the applicant's ongoing history of domestic violence, aggressive behaviour and adverse interactions with police.
The applicant has never been convicted of any offence of violence, or any other non-traffic offence, nor has he ever been subject to a final AVO. He has never used, or threatened to use, firearms in his altercations with his ex-wife. There is, however, enough evidence to show that he has indeed been a party to ongoing domestic violence incidents, whether provoked or not, and whether or not accompanied by, or consisting of, violence on the part of M****. The latter has brought four AVO applications against him, but all have been either dismissed or withdrawn.
Police responded on 13 September 2018 to a report of a serious instance of domestic violence at the applicant's house on 7 September 2018, following which he was charged with offences of malicious damage, assault occasioning actual bodily harm and a safe storage offence. He was acquitted of the malicious damage and assault charges but was placed on a 12-month CRO in respect of the safe storage contravention, for which he had pleaded guilty.
In administrative review proceedings of this nature, however, it is not the fact of conviction or acquittal that is crucial, but the nature of the conduct disclosed in the evidence. The police fact sheet describing the events leading to the applicant's arrest on 13 September 2018 (exhibit R1, pp 26 - 31) describes a dispute in the presence of the children on 7 September over the cost of a recent vehicle purchase by M*** that led to the applicant throwing his dinner on the floor. The struggle for possession of M****'s mobile telephone after she had taken a picture of the mess resulted in the applicant allegedly throwing the telephone down the lavatory. When the dispute continued the following day at M****'s father's residence, the applicant allegedly became abusive towards him, shouting that he would destroy his business and reputation in the town.
When interviewed by police in relation to the alleged offences, the applicant admitted that an altercation had taken place and said "I took the phone because she threatened me" and said he had thrown the telephone down the lavatory because "I was upset". Asked about statements that he had pushed M**** in the bathroom, he is recorded as stating that "That's not true she picked me right up and threw me into the bathtub".
[11]
Safe storage contravention
Next, the respondent relies on the safe storage offence. When police attended the applicant's residence on 13 September 2018 in connexion with the domestic violence incident on 7 September, they observed a gun safe that was not secured or bolted to the structure of the building and could be wheeled around the room (exhibit R1, p 30). The safe contained a .22 target pistol. The fact that it could be wheeled out of its location was contrary to the specific legislative requirements of a properly secured safe in connexion with a category H (pistol) licence. The applicant maintained that it was in fact properly secure, pointing out that s 40(1)(b) of the Firearms Act states that "if such a receptacle weighs less than 150 kg when empty, it must be fixed in order to prevent its easy removal". His evidence was that it was a "seriously heavy" old-style safe which, especially as it was full of papers, weighed more than 400 kg and thus was exempt from the requirement that it be fixed to the structure.
That argument was not developed in the submissions, but on the face of it does not appear to assist the applicant. Section 40 applies only to category A and B licences, whereas category H licences are covered by s 41, which contains no exemption for safes weighing over 150 kg and states that the safe "must be bolted to the structure of the premises where the firearm is authorised to be kept" (s 41(1)(b)). The applicant, however, was adamant on the point, insisting that s 40 supported his proposition "in black and white". On the other hand, in his evaluation dated 19 June 2020, Mr Schreiner noted that "Mr Elley accepted responsibility for not keeping his pistol 'safely 'as per regulations, but stated that he always handled firearms carefully…." (exhibit A1, p 27).
Given the applicant's unchallenged evidence about the estimated weight of the safe, removing it without special equipment would probably have been impracticable and the contravention would lie at the lower and of the scale of seriousness. The respondent, however, relied on the tribunal's comments in Johnston v Commissioner of Police [2021] NSWCATAD 231, [45] that "Even when safekeeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence". In this case it seems less a case of a lax attitude to safe storage as a dogmatic misunderstanding of the statutory requirements.
[12]
Mental health
An applicant's mental health is also a strong consideration in determining whether a person is fit and proper to hold a firearms licence. The applicant's recent interaction with police on 20 June 2022 suggests that his mental health remains a live issue.
Mr Schreiner's evaluation dated 19 June 2020 (exhibit A1, "D") recorded that the applicant reported relationship counselling, anger management and a history of "reactive depression" after the separation from his wife. He participated in a similar assessment in 2017, which identified subtle anger related difficulties, but no formal mental health condition. During 2018 he attended 12 counselling sessions with psychologist Ms Kim Malone aimed at addressing relationship difficulties and anger management issues identified during his 2017 assessment. Mr Schreiner's evaluation dated 15 June 2017 stated that "Mr Elley's results directly suggest some difficulty with anger control. He regards himself as a very meek and unassertive person and his personality profiles revealed 'submissive' traits. This, in turn, could lead to difficulty controlling anger and appropriately expressing his anger when needed" (id., 58).
A report in connexion with custody proceedings by a consultant psychiatrist, Dr Douglas Andrews of Coffs Harbour, dated 2 February 2021 (exhibit A1, pp 38 - 44) noted that in March 2019 he suffered from an "emotional breakdown" and was voluntarily hospitalized for 2½ weeks in Coffs Harbour, where he was prescribed an antidepressant, Mirtazapine. Medical staff diagnosed a major depressive disorder relapse. After his discharge he travelled to Sydney and admitted himself to Royal North Shore Hospital for a further 2½ weeks, where the diagnosis was "adjustment disorder with depressive features".
He ceased his medication approximately a month after his discharge from RNSH and reported no further emotional difficulties or treatment. Dr Andrews noted that he had "passive thoughts of suicide, but no formulated plan or intent" (id., 38). But "If he is in a crisis, or feels suicidal, then he should approach mental health services at the CHHC" (id., 40). Dr Andrews concluded that "Taking everything into consideration, it is likely that Mr Elley can be demanding and difficult, has a sense of entitlement, and has high expectations of others" (id., 43).
The most recent expert evidence is Dr Andrews's report dated 2 February 2021, which was produced for the purposes of child custody proceedings. The most recent report directed to suitability to hold a firearms licence is Mr Schreiner's evaluation dated 19 June 2020, which concludes that he was not suffering from a mental condition that would put public safety at risk if he had possession of a firearm, but thought he would still experience difficulty expressing frustrations and anger were needed and should resume counselling sessions with Ms Malone and explore assertiveness training.
[13]
The references
The applicant attached two character references (exhibit A1, "C"), one from his eldest daughter Mrs Sarah Fountain, dated 9 September 2022. She writes that she lived with the applicant as a teenager after her parents divorced, in addition to several years during her 20s. She had never known him to be domestically violent. In contrast, had been a loving parent to all of his children.
Throughout his ownership of firearms, he had demonstrated care and responsibility when using them, something of which he is proud. To the best of her knowledge, the firearms were locked away when not in use and he only used them with the appropriate safety precautions. Throughout her life, her father had been a motivated, hard-working person who provided a good education and quality of living for herself and her siblings. Due to his diligence and intellectual dexterity, he had experienced tremendous success in property development and project management. She is very proud of the fine example of commitment and perseverance he had shown in a number of adverse situations.
The other reference is from Mrs Maureen Elley, the applicant's daughter-in-law who is married to his son Joseph. She first met the applicant in August 2013 when she was dating his son Joseph. She visited his farm in Gleniffer, near Coffs Harbour. She would sometimes enter his study to use the printer and saw gun cabinets, but never any firearms. She knew the applicant held a firearms licence and owned guns, but never saw any trace of them.
As her mother had grown up on a farm, it never struck her as anything other than natural and humanitarian for a livestock owner and farmer to possess firearms. On occasion Donald mentioned visiting the pistol club as a recreational pursuit. He is a very careful and calculated businessman and, as a Christian and a pacifist, she is sure he is discreet and careful with his firearms.
She and Mr Elley have little boys similar in age to the applicant's boys. Donald is very gentle and affectionate with his grandchildren, reading them stories and interacting with them. He is a considerate man. On his visits, he has assisted her with taking care of their laundry, cleaning the kitchen, walking the dog and taking care of the baby so she could do her university work. Donald exercises his gentle and compassionate nature in his efforts to help her with her children, which included giving them bakery treats on his return from the shops, engaging them in responsive conversation and the reading of many books. He is a frequent guest in their household when he travels down to Sydney, not wanting to miss out on seeing their boys at every opportunity. His treatment of his grandchildren could be dismissed as natural and paternal, but his concern for the vulnerable extends beyond his family as is demonstrated by his concern for the welfare and treatment of the victims of sexual abuse, who had sought him out through his online blog. His concern for those victims and listening to the injustices they have faced in dealing with various institutions has seen him contacted by governmental commissions and reporters in Australia and New Zealand to gather further information. The Australian royal commission into institutional responses to child sexual abuse sought advice and information from him in 2014.
[14]
Conclusion on fitness and propriety
The applicant is a 65 year-old businessman who has been successful in the fields of construction and property development. He also operates two properties, one of 55 acres and the other of 155 acres. He has never been criminally convicted, though he was made subject to the CRO in respect of the safe storage contravention. He had four AVOs brought against him by his now ex-wife, all of which were dismissed or withdrawn. He has never been the subject of a final AVO but was the subject of multiple domestic violence reports during the period of his marriage conflicts and breakdown. Currently he has an AVO application pending against his ex-wife which comes on for hearing in May 2023.
His firearms licence history is somewhat eventful, his licence having been suspended twice and revoked twice, one of the revocations having been set aside by the tribunal in 2017. Since first being licensed on 29 June 2011, he has held a licence for a combined total of only seven years. For the reasons given above, the safe storage contravention in 2018 need not be an insuperable obstacle to his recovering a licence. There is no report of his ever using a firearm dangerously or inappropriately or of making threats involving firearms.
Overall, the applicant appears as a man of good character and prudent attitudes, but with unduly combative and possibly obsessive tendencies. He has accumulated a significant mental health history, discussed above, which dates back to at least 2017 (and, it may be noted, largely post-dates Thode SM's favourable decision in his decision to set aside the 13 May 2016 revocation). That history includes observations of problems with anger management, depression and in one instance suicidal ideation (but no intent). There are also lay observations of seemingly obsessive behaviour.
Following an "emotional breakdown" in March 2019, he was voluntarily hospitalized in Coffs Harbour and prescribed antidepressant medication. He remained in hospital for 2½ weeks. After discharge he admitted himself to RNSH for an additional 2½ weeks. He received a supportive psychological evaluation in relation to firearms licensing on 19 June 2020 from Mr Schreiner, who also recommended resumed counselling sessions with Ms Malone. The applicant is currently not taking any psychotropic medication and has received no psychiatric help since 2019, although he was advised to resume counselling.
[15]
The public interest
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of 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, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[16]
Orders
1. Decision under review affirmed.
2. Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2 is prohibited.
3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
4. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR2 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the applicant.
[17]
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
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: 04 November 2022
Parties
Applicant/Plaintiff:
Elley
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
His depression was professionally diagnosed by Dr Andrews of Coffs Harbour, a highly experienced clinical psychiatrist, as "reactive depression". Dr Andrews is a leading Coffs Harbour psychiatrist and a leading consultant and part-time university lecturer in Sydney. The circumstances that had led to his depression had passed by June 2019, having lasted 3 to 4 months.
He was on mild anti-depressant medication while in hospital but came off it under supervision of his long-time Sydney GP, Dr John Wright of Lane Cove Medical Centre. He had never been on medication for depression or anything similar before those three months in 2019. His mental health has been great and completely stable since June 2019 and before March 2019. It was only for those few months when he was deprived of his small boys that he was struggling to feel OK. Family Court proceedings were finalized in mid-2021. He had not been deprived of access to his children for the three years since 2019.
There had been no incidents where it was alleged that he had threatened violence in connexion with the custody of their children, nor where it was alleged that there had been any discord during a changeover. The statement of reasons provided by New South Wales police in respect of the internal review suggested that "medical records obtained in 2020" demonstrated that he was "still being treated" in 2020. That was untrue, as all treatment had ceased in mid-2019. He had not required any psychological assistance since then. He did not know what document was being referred to as it had not been provided as part of the bundle of documents relied on by the respondent. He did not know the context of the statement or indeed who had made it.
He also noted that there was zero evidence that he had ever used or threatened to use firearms to harm himself or others. The idea of suicide is abhorrent to him and contrary to his faith.
He had always used, and wished to continue to use, his firearms for a number of purposes, each of which demonstrated his genuine need for a licence. He has an ongoing need to control vermin such as foxes and wild dogs on his two farms in the Bellingen area. There is a serious problem with foxes and wild dogs in rural properties throughout Australia. When licensed to do so, he had used his firearms to control the fox and wild dog population. While he had not been licensed, he had had to rely on 1080 wild dog and fox poisonous baits, which only kill a percentage of foxes and wild dogs in the locality.
When he had his firearms, he used them humanely to destroy injured, diseased or aged livestock on his property. That is a regular requirement on a farm. He has two farms, one of 55 acres and one of 155 acres. Both are surrounded by state and private forests frequented by wild dogs and foxes and where they have their dens. Not having a firearm licence and a rifle had meant that he had to rely on friends and neighbours, or otherwise try to arrange for a private veterinarian to attend the property. That is expensive and had resulted in unnecessary suffering for livestock that he had not been able to deal with quickly and humanely. Often vets are busy, and it is an unnecessary imposition on neighbours and friends who were always busy on their own farms and with their own lives.
He is also a recreational shooter at the Coffs Harbour Pistol Club and had been unable to continue in his involvement in the sport without his licence. He misses the camaraderie and the fun of being with other club members.
He was applying for reinstatement of categories A, B, C and F [sic], which were the categories he had before losing his firearms licence in 2019. That was because of an AVO taken out against him falsely by his ex-wife M***** when she left him with their very young boys, ***** and *****.
He had previously obtained a report from a clinical psychologist, Dr Istvan Schreiber, which was attached to his affidavit and marked "D". An earlier report was marked "F". Also attached and marked "E" was a report under the hand of Dr Andrew, prepared for the Family Court proceedings.
This was the third time he had come before the tribunal to fight a decision by the respondent to cancel or refuse to grant him a firearms licence. In 2017 he successfully appealed the Commissioner's decision. In 2020 he withdrew his application after long drawn-out arguments with the Commissioner's representative.
Cross-examined by Ms Tipene at the hearing, the applicant admitted the correctness of his traffic record (exhibit R1, pp 32 - 36) including infringements since he obtained his firearms licence in 2011. One had been recorded on 17 February 2022, which he said was electronically detected while he had his telephone on his lap, and was not talking or texting. The detector had lit up his car. The demerit points suspension imposed on 12 April 2022 was not implemented on his entering into a good behaviour condition. Since then he had installed a jack to hold the telephone while he was driving. He had no contraventions for drink-driving or high-level speeding. All had been under 10 km/h. He lived in the country and while driving in Sydney the traffic moved at about 10 km/h over the limit.
He did not dispute that he had incurred 15 violations since 2011. He had driven since he was 15 in New Zealand, where it had been possible to obtain a licence at 15. He had been driving for 50 years and had never been responsible for an accident. At court magistrates never brought up his traffic record. However, there was zero tolerance for mobile telephone offences.
He had never had a criminal conviction or a final AVO recorded against him, but four IAVOs had been recorded since he obtained his firearms licence. The first one in December 2014 was withdrawn by police, and the one in May 2015 was also because his wife lied. The next one was in September 2018 when his ex-wife and her mother were seeking a divorce advantage. It was coordinated with his wife's departure by making a false AVO. The latest was over a text he had sent her asking her to stop attacking him in court.
He had not reported the violence she had used against him since 2013 until the latest incident, as reporting his wife to the police would have ended the marriage and they had two children. He had never been violent. His ex-wife had no conscience and lied so much. He simply wanted his experience to be heard. Police had brought charges against her, but withdrew the matter after she had made an approach to a senior police officer.
It was for that reason that he had instituted a private AVO application. He had waited 6 months before being allocated a hearing date of 22 September 2021, but the date had been vacated because of the public holiday for the funeral of Queen Elizabeth II. His AVO application had been adjourned to May 2022.
Ms Tipene then referred to the photograph of his gun safe (exhibit R1, p 19), which was the subject of the charge for failing to store a firearm safely (id., 25). The police fact sheet for that charge records that "Within that room Police sighted a large stand-alone gun safe about 5 feet tall. The Accused has produced a key and has opened the safe and has surrendered 5 'long arms'. The accused has then showed Police a large 'safe' which was housed on a trolley comprising part of the structure. This safe was not secured or bolted to the structure of the building and could freely be wheeled around the room. Within this 'safe' police located a .22 calibre Pardini Pistol".
The witness confirmed that he had two safes, one 5 feet tall (c. 1.4 m) and the other 0.8 m, on wheels, containing his target pistol. The ammunition for it was kept in the long arm safe. All his storage arrangements were compliant and the safe storage inspections had said it was OK and did comply. The safe did not need to be bolted in that case because it weighed over 150 kg. The police did not accept that view but did not listen and were quite adamant and he was arrested. But he carried out his own research and the regulations say so, in black and white.
The witness agreed that he had pleaded guilty to the charge, but said he had been guided by his lawyer (although he had himself completed two years of a law course). He was vulnerable at the time and did not want to plead guilty, but was advised that he could receive a six-month CRO if he did. He was not fully convinced, and indeed it is easy to find the regulation on the Internet.
It was impossible to move the safe out of the house without proper equipment. That was how he came to obtain it - the company that had owned it could not move it out when they relocated, but he had arranged to do so, recruiting four burly Islanders who had to use straps. He estimated that it weighed more than 400 kg as he was 120 kg and he could not get it off the ground. It was also full of papers. He is a builder, and knows weights. It was an old style safe that was seriously heavy, more than the long arm safe. It did have little metal wheels so it could be pushed around, but to get it out of the premises by himself he would need equipment.
As regards mental health, he had separated from his wife in 2018. After she left he was OK for a while, but it was hard for him when she asked the boys to call her boyfriend Dad. There had been one period of five months, and one of seven months, when she had deprived him of access to the children. She was able to stop access in September 2019 because of her use of the interim AVOs. The COVID restrictions had made the proceedings all very drawn out. It was a painful time and he was in the psychiatric hospital for short periods. He had to get a psychiatric clearance. For a short period he voluntarily spent time in hospital treatment until he felt healthy in his emotions again.
The matter had been going on since 2016 and he had been successful the first time in getting his licence revocation set aside. Referred to Mr Schreiner's psychological evaluation (exhibit A1, p 26, para 2.5.2) he said the 2017 evaluation referred to was not related to the children, but had been requested by Mr Carlo Zoppo because he had found references on the applicant's blog site to psychiatric issues. This was before M**** left and related to his firearms licence. The senior member had ordered a mental health assessment. Mr Schreiner's report was part of the evidence for recovering his licence.
The report noted that in March 2019 he had suffered from an "emotional breakdown" and was hospitalized at Coffs Harbour for 2½ weeks and prescribed Mirtazapine. That was because of her leaving and taking the boys. He was then asked about the statement in the report that "Between October 2019 and February 2019 he attended 12 counselling sessions [with psychologist Kim Malone], aimed at addressing relationship difficulties and anger management issues, identified during his 2017 assessment". He replied that Mr Schreiner, who lectures at university, had developed a behavioural analysis model whereby you fill in a questionnaire.
The anger management issues were not major, but he had helped the applicant with them. There had been two periods of hospital treatment in March 2019, one at Coffs Harbour as a voluntary patient and then for a couple of weeks at Royal North Shore Hospital (exhibit A1, para 2.5.3). He had ceased his medication about a month after his discharge from RNSH. He had never taken medication except during that period. Mirtazapine was an anti-depressant that had taken the place of codeine.
He no longer needs psychiatric help, and had received none since 2019. He was currently working things through, but his mental health was good and normal since June 2019. He had obtained a position as a construction manager, and also operated two farms, as well as looking after an 18-year old and two young boys. He no longer suffered from depression or took any medication. There was no re-examination.
The applicant also tendered to character references (exhibit A1, "D"), the contents of which are summarized below.
Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [63] - [68], the respondent had submitted, showed that even it with a lack of criminal charges, an applicant was not a fit and proper person to hold firearms, giving weight to his history of repeated aggressive behaviour, lack of insight into his actions and attempts to minimize his responsibilities. But in the present case the tribunal had not been given the same amount of evidence. There was not even a clear allegation before the tribunal.
In relation to the safe storage matter, he had pleaded guilty but had not been convicted. It was open to the tribunal to exercise the discretion in his favour. In any event the pistol had been properly stored. The respondent had also relied on Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 106, [47] where I had said that "Even where storage contraventions lie at the lower end of the scale of seriousness, they can evidence and attitude that is still significant when determining whether a person should have a licence". But in that case, the applicant had stored .22 rifles under his bed. Johnston v Commissioner of Police [2021] NSWCATAD 231, [45], also cited by the respondent, had made the same point, but in that case a firearm had been mounted across the dashboard of the applicant's vehicle, visible from the outside. In the present case the breach was purely technical, because the safe could not be removed from its location.
The respondent had argued that the applicant's traffic record showed a pattern of disregard for the law that was relevant to firearms licensing issues, citing Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81]. But that record cast little light on the applicant's ability or willingness to store firearms safely. His violations were in the lower range, while those in Keegan Jacques were much worse than the infringement notices the applicant had received. He had not been texting at the time of his recent contravention. His record had little relevance to safe storage.
The applicant's mental health problems had arisen from the traumatic breakup of his marriage and the ensuing custody dispute. He had voluntarily sought help, which was to his credit, and his problems had now been resolved. There was no evidence of any self-harm risk.
In relation to event report E89356834, 20 June 2022 (exhibit R1, p 40), Mr Tiedt pointed out that the applicant had complained to police, who had declined to take action. As the applicant was not cross-examined on this point and it was not put to him, it warranted no weight. It was a summary lacking a logical basis and was unreliable on the question of mental health.
The public interest was the other side of the fitness and propriety material and the applicant put forward the same submissions. He was a man aged 65 who had never misused firearms. His record showed that he presented no risk to public safety. The decision under review should be set aside.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
Police noted that the applicant is significantly bigger and taller than M*****. Nevertheless, it is possible that something of that nature could have occurred. In Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426, the federal Administrative Appeals Tribunal received expert psychological evidence stating that "men and women are now equally violent towards each other, largely owing to the effect of drugs. Recent social science research is said to support the view that domestic violence is now perpetrated by both sexes in roughly equal proportions". (It is not suggested that either of the spouses in this case used drugs or that any particular allegations of violence have been established.)
There is also evidence of adverse and stressful, though not criminally threatening, interactions with police. His written submissions very properly acknowledge that "it cannot be disputed that the Applicant has formerly had adverse interactions with NSW Police". In his successful 2017 tribunal application to reverse a licence revocation, Thode SM found that "The evidence before the Tribunal confirms that the applicant has not been violent, has not demonstrated a propensity to violence, and has never been charged with a criminal offence", but went on to say that "His behaviour towards police can at best be described as argumentative and at worst, disrespectful": Elley v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 354, [49]. Thode SM went on to say that he could not be satisfied that the cumulative incidents describing the applicant's interaction with police would amount to a finding that the respondent had demonstrated any actual increased risk to public safety in the circumstances.
An event report dated 23 June 2022 (exhibit R1, p 40) describes a claim made by the applicant at Castle Hill police station on 20 June 2022 that he thought his WordPress account, which he believed he had made private, was being hacked. He brought his laptop to the station to show how he thought that was being done and demanded that detectives investigate the matter and also engage a 'tec team'. Police tried to explain to him how to change the public setting on his articles to prevent people from commenting on his blogs, but he refused to accept their explanation and insisted he was being hacked, despite police showing him the setting on the website. No police action was taken, but the report comments that "Police observed the P/R [person reporting] possibly having mental health issues".
There is also confidential evidence on this issue. Mr Diedt submitted that it would be unfair to give weight to evidentiary material which the applicant had not seen, could not counter and on which he could not cross-examine. It has been held, however, that any derogation from established principles of procedural fairness that could arise from the making of orders under s 64(1) of the CAT Act is not a reason to avoid making such an order. The provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24]. The same rationale applies to the use made of confidential evidence in the tribunal's consideration of the issues.
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The evidence does not show any sustained history of violence or threatened violence, with or without firearms, but it does depict a pattern of aggressive behaviour, violent disputation with others in the community, intense antagonism towards police, seemingly obsessive behaviour and a relationship with his ex-wife that is still tense and appears to contain the potential for explosive outbursts. In Bilanenko the tribunal found that an applicant, even without criminal charges against him, was not fit and proper because of his history of repeated aggressive behaviour, lack of insight into his actions and attempts to minimize his responsibilities. Mr Diedt sought to distinguish that case on the basis that the evidence in Bilanenko was more detailed than here, but there is consistent evidence over a long period, extending almost to the present time, to support such a conclusion.
The fact that the applicant may not in all cases have been the perpetrator of the conduct of concern need not alter that conclusion. In Tolley the tribunal observed that, given the breadth of the discretion and the overriding object of public safety, there was no basis for differentiating between conduct of the applicant himself and conduct of another that might impact on public safety in the context of a firearms licence. Mr Diedt argued that in Tolley the offences committed by the applicant's son, who was living with him, were much more serious. No doubt that is true, but the principle remains the same.
A related matter relied on by the respondent is the applicant's poor driving record. He has accumulated 27 infringements, including 15 since June 2011 when he obtained his firearms licence. His licence has been suspended four times, and cancelled once. His most recent violation was a mobile telephone infringement on 17 February 2022, detected electronically. I accept his explanation that the telephone at the time was resting on his lap and not in use, but even so the record remains a poor one. In Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81] the tribunal stated that repeated breach of traffic laws and regulations aimed at protecting public safety indicated an unwillingness to abide by the statutory safety standards governing firearms licensing.
The applicant contended that his record cast little light on his ability to abide by safe storage requirements. His violations were in the lower range and had little relevance to safe storage. Although the record does seem to suggest a troubling unwillingness to learn from his mistakes, I do not regard it as a substantial factor as there is sufficient other evidence that he takes a conscientious approach to safe storage and firearms safety generally.
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The applicant thus has quite a substantial psychiatric history but says he has not required any assistance since 2019 and that his problems are resolved. Mr Schreiner did suggest in his 2020 report that the applicant should resume counselling sessions with Ms Malone, but he has not done so. At the hearing he strongly denied any suicidal ideation, but there are observations of such ideation earlier in the expert evidence, though not of any clear intent or planning.
There are, however, recent reports of obsessive or seemingly abnormal behaviour. With the tensions with his ex-wife still unresolved, and likely to remain so given their necessary interactions over custody and the approach of the AVO proceedings against her in May 2023, prudence may dictate the preparation of an updated evaluation to determine whether his actions merely represent an inconsequential eccentricity or instead something that could erupt into a danger to public safety should relations become exacerbated.
Her husband Joseph has said that he was never physically disciplined as a child, and Donald had spoken of never raising a hand to either of his boys. Accusations that Donald is physically abusive or violent are completely irreconcilable with her perception and experience of his character and gentle nature. Accusations of physical violence are completely incongruent with her interactions and dealings with this Christian man.
While the explosive relationship with his ex-wife has been partly resolved since their separation, the continuing contacts over child custody and the applicant's pending AVO proceedings against his ex-wife would appear to contain the potential for further outbreaks of angry conflict. As it has been almost 2½ years since Mr Schreiner's favourable evaluation, it would appear to me prudent to seek a more up-to-date report. In the absence of such evidence I am unable to make a positive finding that the applicant is a fit and proper person to hold a licence within the meaning of s 11(3)(a).
The applicant operates two rural properties and expresses a need to have firearms in order to control ferals and other vermin and humanely to put down sick or injured livestock. Indeed, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry.
That consideration cannot, however, outweigh the need to minimize risks to public safety. For the reasons given above in relation to fitness and propriety, I do not think the currently available open and confidential evidence permits the tribunal to find that issuing a firearms licence to the applicant would involve no real or appreciable risk to public safety. I therefore find that it would not at present be in the public interest for the applicant to be issued with a licence.