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 42Bottomley v Commissioner of Police [2005] NSWADT 211Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 11Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald 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
Peel v Commissioner of Police [2022] NSWCATAD 162
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Judgment (12 paragraphs)
[1]
reasons for decision
The applicant Mr Anthony Robert Farah applied to this tribunal on 21 October 2022 for review of a decision of the respondent Commissioner of Police, New South Wales Police Force, to revoke the applicant's category AB firearms licence in accordance with s 24(2)(c) and (d) of the Firearms Act 1996 and cl 20 of the Firearms Regulation 2017.
The applicant was issued with a firearms licence on 2 February 2019, which was to expire on 1 February 2024. On 22 November 2021, his licence was revoked on the ground that he was subject to two interim Apprehended Domestic Violence Orders (ADVOs) and had been charged with a number of offences, including common assault, stalking/intimidation, possessing an unregistered firearm, not keeping a firearm safely and not having approved storage (exhibit R1, pp 6 - 7). The revocation decision was affirmed following an internal review on 14 October 2022 (id., 1 - 4).
The decision to revoke the licence is a reviewable decision under s 75(1)(c) of the Firearms Act and s 30 of the Civil and Administrative Tribunal Act 2013 (CAT Act). The matter came on for hearing on 20 April 2023.
[2]
Applicable legislation
Section 24(2) of the Firearms Act sets out a number of grounds on which a firearms licence may be revoked, including s 24(2)(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, and s 24(2)(d), which provides that a licence may be revoked "for any other reason prescribed by the regulations".
Clause 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
The issues in the present application are thus whether the applicant is no longer a fit and proper person to hold a licence, and whether it is not in the public interest for the applicant to continue to hold a licence.
[3]
The evidence
The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant.
The applicant tendered a statement dated 10 March 2023 (exhibit A1, including attachments) in which he referred to his conviction for stealing on 7 December 1993 and stated that he was at the time 20 years old and had just finished a major university assessment. He and some others were drinking and he was dared to take an emblem from a car. Accepting that dare, he pulled the emblem from the car in a car yard. Police pulled their car over and asked who had committed the act, whereupon the applicant admitted it and was charged. He served community service.
His conviction for common assault on 26 March 1998 occurred when he was aged 24. He attended a meeting requested by a nightclub owner at his club. The applicant and his business partner had leased Friday nights at the club for events, and patronage had increased as a result of their marketing activities. At the meeting, the owner said he was terminating the arrangement, even though the applicant and his partner had successfully increased his patronage. As they had only an oral agreement (at the owner's preference), the applicant was insisting that the owner would have to honour the contract until the end of the year as previously agreed. The owner refused and told the applicant he was no longer welcome at the club and threatened him if he were to take the matter further. The applicant said he had reacted poorly to this intimidation by flicking a glass of vodka in the owner's face and leaving. The owner called police and laid charges. He had pleaded guilty, accepting that his behaviour was unacceptable and the nightclub owner had got the better of him twice on that day.
As regards his conviction on 24 October 2009 for driving while licence suspended, he was aged 35 and attended court without a lawyer as he was not aware that he needed one, believing that a traffic infringement was not a criminal proceeding. His defence was that he did not know his licence was suspended. He was aware of a suspension notice, but his mother opened the notice letter and misread the dates when informing him (English being her second language). On the court day, he did not understand the court procedures and was unable to defend himself effectively or even to seek an adjournment to obtain representation. Until the respondent's internal decision in the present matter was published, he was not aware that he had a criminal conviction for that matter.
[4]
Respondent's submissions
Ms Tipene relied on the respondent's written submissions (exhibit R2) which, after setting out the background and the applicable law, contended that the applicant has a history of violent and illegal behaviour. Between 1994 and 2010, he was convicted for a number of offences related to stealing, violence and driving while license suspended. Notably, 13 March 1998, he threw a glass in another person's face, causing that person to need medical treatment. He was also previously served with an AVO in 2012, which was shortly thereafter revoked. The report of the 2012 AVO quoted his wife as saying that there was a history of mental and physical abuse by the applicant. He also has an extensive history of traffic violations.
In 2021, he was charged with a number of offences relating to an alleged domestic violence incident occurring at his home:
common assault (DV), 2 counts
stalking/intimidate causing fear of harm (domestic, 2 counts
not keeping a firearm safely
possessing an unregistered firearm
not having approved category AB firearms storage.
In the course of struggling with his son, he allegedly threatened both his sons, including saying "I will stab you in your sleep" and "just get out of my house or be dead tomorrow". As a result of that incident he became subject to two AVOs, which were later withdrawn. Police became aware that the applicant had an unregistered air rifle in his possession and that his registered firearms and ammunition were not being held in secure storage. His safe was freestanding and not secured to the floor and the ammunition was incorrectly stored in a duffel bag. The unregistered firearm was located in a plastic bag, unsecured in a bedroom. The tribunal has repeatedly emphasized the importance of the safe storage provisions: Leviny v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 108. In that case the tribunal had said that even where storage 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 Bottomley v Commissioner of Police [2005] NSWADT 211, [18] - [19] the tribunal had stressed that the Legislature had not left the manner in which firearms are to be stored to the discretion of licence holders, but instead elected to impose detailed and prescriptive requirements on all licences.
[5]
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 revocation of a licence or permit: s 75(1)(c), which is a discretionary decision. 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.
[6]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is no longer a fit and proper person to hold a licence. Section 24(2)(c) provides that a licence may be revoked if the Commissioner (and on review this tribunal) is of the opinion that the licensee is no longer a fit and proper person to hold a licence.
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.
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].
[7]
Offences 1994 to 2010
On 7 December 1993, the applicant was charged with stealing, and on 21 March 1994 came before Parramatta Local Court. There the matter was "ADJ GEN [adjourned generally] (community aid panel completed)" (exhibit R1, p 9), It appears that he was found guilty and required to do community service but without a conviction recorded, which would accord with standard practice in relation to first offenders.
The applicant's explanation was that he was aged 20 at the time and had just finished a major university assessment. He and some friends were drinking and he was dared to take an emblem from a car. Taking up the dare, he took the emblem from a car in a car yard. Police pulled over the vehicle he and his friends were travelling in and asked who had done it. He admitted it and was charged. While the act did constitute stealing, it arose 30 years ago as a result of undergraduate foolishness while celebrating the completion of a major assessment and today carries little adverse weight on the issue of fitness and propriety. It does, however, illustrate his tendency already noted to make frank admissions of his contraventions.
Next, the respondent points out that on 13 March 1998 the applicant was reported to have thrown a glass at another person's face, causing the latter to require medical treatment to his eye. The applicant was later charged with, and convicted of, common assault. His explanation was that he and his business partner had an oral agreement with a nightclub owner to lease the premises on Friday nights. They invested time and money in marketing the events they presented and increased the overall attendance at the venue.
On the day in question they had a meeting with the nightclub owner, who purported to cancel the agreement. The applicant became upset and before leaving the premises, and while they were all still seated, he flicked his glass of vodka towards the owner, causing the contents to splash into his face. He had not thrown the glass itself, as he knew that would be dangerous. He had pleaded guilty to the offence as described in the fact sheet because he was unrepresented and had not read the facts. But he had not thrown the glass. In the circumstances his version can be accepted, but although he had been sore provoked, his action nevertheless constituted an assault and battery and he was convicted of common assault and fined $750.
[8]
Event on 14 August 2021 and ensuing charges
The most serious incident, described in more detail above, occurred on 14 August 2021 and began over an argument with Susan when he brought home his recently deceased sister's car in order to make it roadworthy, as he had promised her he would. Mrs Farah objected and an argument ensued which soon involved the two sons as well. It would appear that Luke initiated the physical confrontation by "shirt-fronting" his father, who was shocked by this behaviour, and also by that of Matthew who came up behind him and grabbed him, as it seemed out of character for both boys. In the course of the mêlée the applicant was quoted as saying to his sons "I will stab you in your sleep" and "Just get out of my house or be dead tomorrow". Two AVOs were taken out, and later withdrawn.
At the hearing the applicant candidly admitted making those threats but said it had been a low-key physical confrontation, that no blows had been struck and that no acts of violence were committed against his wife. He pointed out that all three were trained in martial arts and the exercise had really been one of brinkmanship. The assault and stalk/intimidate charges had been withdrawn.
Shortly afterwards, on 17 August 2021, Luke wrote that he had no concerns for his safety and had no issues with the current AVO being amended to allow the applicant to return home. He did not wish the criminal matters to proceed and would like the charges and AVO against his father dropped. Matthew, then aged 18, wrote a letter to a similar effect, stressing that he did not want the proceedings to continue and would like the charges and AVO to be dropped (part exhibit A1). Matthew had never expressed any fear for his safety. The applicant explained that all four family members are now living together and that relations are harmonious.
The firearms charges arose out of the same incident. In view of the reported threats, police made an integrated licensing system check which revealed five firearms registered to that location. They took possession of four firearms registered to the applicant and one to Matthew. In the process they observed that his firearms safe was freestanding and not securely bolted to the floor, which they believed to be a contravention of the Firearms Act. That was not the case, however, as it was only being used to store category AB firearms, which may be stored in a safe that is not bolted to the floor provided that it weighs no less than 150 kg (see s 40). The applicant's Spika gun safe, photographs of which form part of exhibit A1, weighs 155 kg. This matter is no longer contested.
[9]
Traffic record
The applicant admitted that his traffic record was "terrible". It includes, since he obtained his licence in 1991, some 14 speeding infringements and at least eight licence suspensions, as well as numerous other violations. On two occasions his licence suspensions had not been implemented because he entered into good behaviour conditions, which he proceeded to break. His most recent violation was speeding in a school zone on 17 March 2022, following which his licence was again suspended on 22 March 2022.
He explained that this egregious record had arisen because of his habit of not looking at the speedometer, a poor excuse. However, he had since taken (greatly belated) steps to remedy that fault and had installed devices in his vehicle to prevent him from exceeding the prescribed maximum, including by warning him when he was approaching the limit by 5 km/h. He has thus not committed a violation since 17 March 2022, although that is hardly a proud boast.
As Mr Mainstone pointed out, however, the applicant has never been charged with any offence involving driving under the influence of alcohol or a drug, or with a PCA, or with driving an unregistered vehicle or driving in a manner dangerous. Whether through skill or good fortune, it does not appear that his driving has ever caused injury to any person, and indeed there is no record of any property damage being caused either.
The applicant admitted being rude to a police officer when stopped for speeding on 2 January 2020, as he thought the officer was asking too many irrelevant questions about his reason for going to Bunnings in such a hurry. He said that he had used the "F" word once, but not twice as alleged. Police had, however, recorded on body worn camera his continued use of what they politely called "colourful language".
[10]
Evaluation - fit and proper person
The applicant is a married man aged 50 who lives with his wife and their four children. He was found guilty of some criminal charges in 1994 and 1998 but the offences were towards the lower end of the seriousness scale and there were extenuating circumstances in all of them. He has no firearms contraventions recorded against him, and no record of addiction to alcohol or drugs or of mental health problems. He has been subject to some AVOs, especially during a troubled period in 2012 when the spouses had separated for a period of 6 months. There is no cogent evidence, however, that the applicant was ever physically violent towards his wife.
The altercation on 14 August 2021 resulted in five criminal charges, none of which proceeded. Luke and Matthew did not wish to pursue the assault and stalk/intimidate charges and they were withdrawn when the complainants failed to appear at court. The charges of not keeping a firearm safely and not having approved storage are no longer in contention. The charge of possessing an unregistered air rifle was strongly denied by the applicant and I have accepted his explanation about the circumstances. Although the 14 August 2021 episode is relatively recent, the evidence does not indicate any realistic likelihood of repetition.
An applicant's traffic record is relevant to fitness and propriety: Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145. The applicant's record is very poor and he has been inordinately slow in recognizing the need to change his manner of driving. He seems, however, to have made a start in that direction and has installed devices in his vehicle to warn him if he is about to exceed the speed limit. There have been no contraventions or suspensions since March 2022.
At 24 he was running his own business, which was successful until the other party to an agreement reneged without notice, in the circumstances described above. He set up another business in 2008 with two business partners, focusing on improving his commercial acumen, and developed a sound business style such that he was able to sell his business to IBM in 2017. Since then he has been working for IBM as managing partner, Ventures Asia-Pacific, successfully operating in a corporate environment where there is no controlling power but a need for relationship and constant influence.
His other contributions to the community including co-founding Code Club in Australia in April 2014. Code Club is a nationwide network of free, volunteer-led after-school coding clubs for children aged 9 to 11. It supports 65,000 Australian children and its mission is to give every child in Australia the chance to learn to code.
[11]
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].
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].
[12]
Order
1. Decision under review set aside.
2. A category AB firearms licence is to be issued to the applicant.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 May 2023
Parties
Applicant/Plaintiff:
Farah
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Turning to the charges on 15 August 2021 at Burwood Local Court of assault, intimidation and firearms matters, he pointed out that all charges against him were withdrawn by the police. The circumstances were that in 2020 and 2021, his sister had been suffering from cancer. As she and their mother lived in Bowral, his practice had been to drive the 1.5 hours to Bowral and visit his sister by himself. Each visit put some strain on his marriage, but they were both managing a difficult situation. His sister's final 6 months put a large strain on his relationship with his wife. His sister died on 29 July 2021.
On 14 August 2021, he went to Bowral by himself to be with his grieving mother, his sisters and their families. He was repairing an oil leak on his late sister's car, which she had bequeathed to her daughter, the applicant's niece. He had promised his sister he would make it roadworthy. The same day, a "snap lockdown" because of COVID-19 was announced, and he needed to return home to Concord by 5 pm. At 3:30 pm he attended Kennard's Hire Mittagong and rented a car trailer to take his sister's car home and repair it there.
On the way home he telephoned his wife Susan to tell her he was coming home and had brought his sister's car with him. She reacted by saying "Don't bring more rubbish home. We already have a broken car in the driveway", referring to his son's car. He took offence at the comment. At 8:30 pm he arrived home and asked his wife if she had contacted the auction site to set a reserve price for her car that they were selling. She replied, "No, I didn't". He was annoyed as the car would sell with no reserve, so he went down to his office immediately to send an email to the auction house before the auction took place in the morning. His wife jumped out of bed and came to the office, and an argument started while he was writing the email. She went to the kitchen, where he followed her and the dispute continued. Their son Luke heard the argument from upstairs and came to the kitchen, and their other son Matthew also came downstairs to the kitchen.
Upon seeing them both in the kitchen, he told them to remove Matt's car from the carport as he needed to repair his late sister's car. Luke responded "No. Why? You can have your Camaro in parts for years". They began exchanging disparaging remarks, while Matthew was silent. Luke then proceeded to "shirt front" him. Wishing to control the escalation, the applicant put his forearm across his chest as Luke was very close to him. Luke was seizing his other wrist, and while that was happening, Matt came from behind and physically separated them by grabbing him and pulling him away from Luke. He never intentionally pinned his elbow to his throat.
He was shocked that both boys were getting physical with him, and fearing for his safety, as this was unusual behaviour from his sons, he proceeded to tell Luke to get out of the house, using poor language and terrible statements. Luke departed. The applicant then told Matthew to get out of the house with a similar approach. Luke returned through the front door, approaching his father from behind his back. The applicant was alarmed by this, and in fear blocked Luke's access to the house and motioned him back outside and told him not to come back in otherwise he would call the police and report him for trespassing. Luke said "I will call them first", which he did, and Matthew then followed him out the door. Police arrived shortly afterwards.
The applicant then referred to a number of event reports from the police COPS (Computerised Operational Policing System) database. Referring to event report E85327132, 24 December 2021, he stated that he had no understanding that police had the right regularly to attend their home as part of the AVO process. He had been advised by his lawyer not to speak to police and thought he was within his rights not to do so. Once the attending officer had explained the AVO process with its attendant right to attend their home, however, he engaged with the officers and answered their questions in the same interaction. He also offered to engage in a further discussion about his family's welfare after the court case. In the subsequent police visit on 13 May 2022, once he understood the AVO process, police recorded that he "was spoken to and was very cooperative and positive". As regards event E84672716, he agreed that when police observed his firearms safe it was freestanding and not securely bolted to the floor. The safe he had purchased weighed 155 kg when empty and did not require fixing to the floor, as he was only storing category AB firearms. He attached a photograph of the safe and its serial number.
As part of the same report, he recalled saying in his conversation with police that "[He] had 5 - 6 guns in the safe", saying he was not sure as the safe was shared with his son Matthew. All firearms charges against him were withdrawn by the police at court. His son Matthew had never said that he feared for his safety (during the 14 August 2021 incident). Letters from both boys confirmed that they did not fear for their safety and want of the AVO and charges dropped.
As regards report E73184503, the applicant explained that he had been stopped for speeding, which might have been correct as he had accelerated to overtake the car in front, but immediately slowed down afterwards. He presumed that the process would be that the officer would issue a fine, as he had admitted speeding. The officer continued to ask questions such as, "Where were you going?". He replied "Bunnings", but was getting annoyed as he thought the questions were unnecessary. Then the officer asked "Why are you speeding to Bunnings? ". He replied, "Why are you asking me stupid questions, just do your job and give me the fine" he felt the questions were unnecessary and that he was not obliged to continue answering them.
Report E47630018, 9 April 2012, arose at a time when he and his wife were separated. He wanted to obtain the keys to his car, which were up in the apartment [where Susan was living at the time]. She avoided his calls all day and no-one was answering the door. Their relationship had deteriorated and the arguments during the period of separation were acrimonious. Missing from the report was the fact that the police went up to the apartment and obtained his keys from Susan, whereupon he left. The following day police served him with the AVO papers.
Referring to report E35992986, the applicant explained that he was the founder, director and major shareholder of Gravity. Chris **** was an incoming investor and also a director. The applicant's father had died from cancer on 10 April 2008 and he was distraught and had resigned as CEO from Gravity on agreement from Chris and Gravity directors that a severance payment would be immediately made to him.
After five weeks of trying to contact Chris **** and other directors, as the payment had not been received, he decided to attend the office to obtain his severance pay. At the time of the incident, he was still a director of the company and well within his rights to attend the office. He also had every right to collect moneys owed to him. He still believes that this was a civil matter, and as recorded by police, "no party wished to make a formal complaint". Eventually he collected his money from the company.
The applicant accepted that his traffic record could only be described as "terrible". There was a longitudinal pattern of speeding since 1995. It was also the case, however, that he had never been charged with any drink or drug driving offences or with driving in a manner dangerous or driving an unregistered vehicle. He would never knowingly drive unlicensed. Once made aware, he does not drive until he is licenced, for example on 22 March 2022, 10 March 2020. He now relies on the Service NSW app for notifications and notices of his licence status. The one occasion when he drove while suspended was outlined above.
He co-founded Code Club in April 2014 in Australia, which is a nationwide network of free, volunteer-led after-school coding clubs for children aged 9 to 11. It supports 65,000 Australian children, its mission being to give every child in Australia the chance to learn to code.
He established his own business in 2008. He focused on improving his commercial acumen and developed a sound business style to successfully sell his business to IBM in 2017. That was done with two business partners with whom he still remains friends. Since 2017, he has been working for IBM as managing partner, Ventures Asia Pacific, successfully operating in a corporate environment where there is no controlling power but a need for relationships and constant influence. His domestic circumstances have improved dramatically and he would responsibly possess and use firearms.
In oral evidence at the hearing the applicant adopted his written statement and explained that his domestic position is now that he is living with his wife and their four children. Twelve years ago they separated for a period of 6 months, but they are now happy together. In cross-examination he acknowledged his multiple driver licence suspensions for demerit points and fine defaults, some of them not implemented subject to good behaviour conditions, and on at least two occasions more than one suspension in the same year. He agreed that it was "a terrible record", but disagreed that it represented a problem in complying with safety laws, saying that he had been in the habit of not looking at the speedometer. He had now installed devices that helped him to comply with traffic laws by warning him when he was approaching the speed limit.
As regards event E73184503, 2 January 2020, when he had said to an officer at a traffic stop who had asked him why he was speeding to Bunnings "Why are you asking me stupid questions? Do your fing job…" He said he could not recall the exact words, although he had said "fing" but denied having repeated that language, though he agreed he could have used better words.
He agreed that when first spoken to by police on 24 December 2021 (E85327132) he had been uncooperative, but that was because he had sought legal advice and had been told not to talk to the police. He did not know that he had to cooperate in this situation. He had been told not to talk to the police, but once they explained the position under AVO legislation he was cooperative, and had been described later in an event report as "very cooperative and positive". He agreed that he had been on bail at the time.
The AVO resulting from the altercation with his sons on 23 December 2021 (E157736802) had been withdrawn at Burwood Local Court. Event E84672716 was the argument over the car on 14 August 2021 (exhibit R1, pp 53 - 55, 103 - 109), which arose during the COVID lockdown. He had brought his late sister's car home on a trailer, at which his wife became upset. There was also an issue about her failure to place a reserve price on her car which she was in the process of selling. Asked whether he had "become angry and aggressive" with Luke as the event report recorded (id., 53), he replied that they had both been angry and aggressive. Luke had shirt-fronted him but he denied trying to control him with the point of his elbow. They were both martial artists and knew it was impossible to control someone with the point of the elbow.
He was asked whether, following a further scuffle in the course of which Matthew had just released his hold on the applicant, the latter had turned to Matthew and said "I will stab you in your sleep", replying "Quite possibly." Asked whether he had said "Just get out of my house or be dead tomorrow", he replied that he had used "colourful words to that effect", but it had been a low-key physical interaction, more in the nature of brinkmanship. There had been no punches thrown. He had done nothing physical to his wife.
His attention was then drawn to the statement in the internal review reasons that "the charges were withdrawn only due to the non-attendance of the victims at Court" (id., 4). He said that the charges had been withdrawn by the police, as had the firearms charges.
Event E47630018, 9 April 2012, arose during the 6-month period in 2012 when the spouses were separated. Following some repeated telephone calls by the applicant asking his wife Susan where she had been, he had begun to abuse her calling her a "f***ing liar" and saying that if she did not come home he would be "coming after" her, and that he would "get someone else to do it… I'll be waiting for you" and other words to that effect causing her to have fears for her safety. He denied that he had made any threats, nor that he had said anything about her coming home. It had arisen at a time when they were arguing about everything and there had been no physical touching. The dispute arose because he wanted his car keys but she would not give them to him. The attending police had gone upstairs to her apartment and retrieved the keys for him.
As regards the common assault charge in 1998 (id., 107 - 108), there had been a dispute because he and his business partner had a lease and had invested capital into marketing Friday night events, but the nightclub owner wanted to change the deal. The applicant had become upset and before leaving, while they were still seated, he had flicked his glass, splashing the contents on the owner's face. He had pleaded guilty to the charge as described in the fact sheet because he had no lawyer and had not read the facts. But they were not correct. He did not hit the owner with the glass, as throwing a glass would have been dangerous.
He remembered the driving while license suspended (id., 109 - 110) in October 2009, which arose because his mother had opened the notification letter and, having limited English, had given him the wrong date of commencement for the suspension. He knew he had a suspension but he had believed it would commence on 20 January 2010, when in fact it was 21 October 2009. He was not legally represented at the hearing and did not know that he was facing a criminal charge.
The firearms contraventions arose following the police intervention over the altercation on 14 August 2021 (E84672716, id., 55). When conducting their licensing check, police found 5 firearms registered to the location, 4 of them to the applicant and one to Matthew. They also found a small duffel bag on top of the gun safe containing unsecured ammunition, and in an upstairs bedroom an unregistered air rifle. He explained that the safe shown in the photograph attached to his statement was the one he had purchased on 24 December 2020 when he obtained his firearms licence. The duffel bag was for firearms cleaning materials and he shared it with his son. It was not used for transporting firearms. He knew nothing about what the ammunition was as he had not actually seen the evidence, although he took responsibility for the matter.
The unregistered air rifle was contentious, he said. He had said there were four or five firearms there because he shared the safe. Four of them were registered to him. The airgun did not belong to him and he did not know who owned it. The bedroom where he and Mrs Farah slept was on the ground floor, and the first floor was for the children. He had not been convicted of any firearms offences and all the charges had been withdrawn.
In re-examination the applicant said in relation to event E73184503, 2 January 2020, (id., 74 - 75) that he had used the "F" word to the police officer at the traffic stop, but had not repeated it. His last traffic violation had been on 17 March 2022.
When police had come to his house to make a compliance check on 6 January 2022 and had initially found the applicant to be uncooperative and aggressive, it was because he had not understood the AVO process, but once the officers had explained it to him they found him to be "very cooperative and positive". Now aged 49, he plans to buy a farm, for which he will need firearms to deal with ferals and other vermin. He also generally likes hunting.
In addition to the other evidence, there are supportive letters from his two sons and from Dr Joel Radford, the minister of Drummoyne Baptist Church, the contents of which are outlined below.
Although all firearms charges against the applicant had been withdrawn by the police at court, the incident remained of significant relevance to the applicant's fitness and the fact that the matter was later withdrawn by police does not negate the seriousness or relevance of the event: Peel v Commissioner of Police [2022] NSWCATAD 162, [34] - [35]. Even with a lack of criminal charges, an applicant might not be a fit and proper person to hold firearms: Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [63] - [68]. The applicant's failure to appreciate the seriousness of the legal requirements was also consistent with his traffic record and repeated negative interactions with the police.
While his explanations and the character reference provided by Dr Joel Radford are supportive of the applicant and his interactions in the community, his history of past convictions, other allegations of criminal, aggressive and violent behaviour are demonstrative of a person who is not a fit and proper person to hold a firearms licence. His extensive traffic infringement record, prior convictions and charges, disregard for the safe storage of firearms requirements and repeated negative interactions with police over an extended period indicate a person with little regard or respect for compliance with the law. The tribunal could not be satisfied that the applicant is a fit and proper person to hold a firearms licence.
As regards the public interest, Ms Tipene contended, the tribunal could not be satisfied that there is no risk associated with the applicant holding a licence. The Commissioner's records indicate that he has a history of aggression, violence and repeated failure to comply with requirements under the law. It was therefore not in the public interest for the applicant to hold a firearms licence under s (11)(7) of the Firearms Act.
In oral submissions at the hearing, Ms Tipene reiterated those points, adding that fitness and propriety required a combination of honesty, knowledge and ability. The applicant failed that test at this point in time. His traffic record was extremely poor and he had again incurred a demerit points suspension as recently as 22 March 2022. He had no prior firearms breaches, but despite his candour, his record could not be ignored. It merited weight in the consideration of the issue. As regards his recent domestic altercations, he candidly admitted that he had "quite possibly" threatened to stab one of his sons and told the other if he did not leave the house he would be dead by morning. He can become heated in an argument, but he has had firearms in his home, together with unsecured ammunition and an unregistered air rifle.
The public interest was concerned with safety, and the applicant's position was unsatisfactory at this point in time. His explanation about the weight of his gun safe was not contentious, and the charge relating to unsecured ammunition, of which he said he had no knowledge, had been withdrawn. He also said the unregistered air gun was not his and was not in his bedroom, which was on the ground floor of the house.
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].
At the outset it is necessary to record that the applicant's evidence in relation to the respondent's case was notable for its candour. The applicant frankly admitted most of the incidents relied on by the respondent, even when, Mr Mainstone submitted, doing so might have been thought contrary to his interests. That pattern adds substantially to the credibility of his evidence and consequently to the credibility of his version of contested events.
The respondent's case on this issue was divided into 3 sections, which may now be considered in turn.
The applicant was served with an AVO in 2012, which was shortly thereafter revoked (report E197949894, 10 April 2012, exhibit R1, pp 87 - 88). The report states that when the applicant's wife was spending the day with a friend, the applicant texted her at her apartment asking where she had been. She did not reply. He then began repeatedly calling her over the next hour, and again she did not answer. At 5:00 pm he attended the applicant's apartment building, and repeatedly rang the doorbell and called out her name. When Susan came out to speak to him, he verbally abused her and purported to give her a choice - she could come home, or otherwise if she did not he would be "coming after" her. Other details are given above.
After the incident Susan made a statement to police and stated that she had felt scared and intimidated by the applicant and that there had been a history of mental and physical abuse. The applicant's explanation was that Susan had his car keys and was refusing to return them to him. She had ignored his telephone messages all day. The incident took place during that period when the couple were separated and their arguments were acrimonious. After police arrived and discussed the matter with the parties, they had gone upstairs to her apartment and retrieved the car keys, which they returned to him, thereby bringing the altercation to an end. He then departed. The next day he was served with the AVO documents. Although the episode occurred while the spouses were separated and relations were acrimonious, and although Susan's refusal to hand over his car keys might have been unreasonable, his language was violent and could reasonably be regarded as likely to put a person in fear for his or her safety. Susan's allegation of past physical violence, however, is not supported by any other evidence.
Police also located a small duffel bag placed on top of the safe that contained ammunition that was not safely secured within the firearms safe (exhibit R1, pp 105 - 106). The applicant explained that the bag was used for storing firearms cleaning equipment and materials and was jointly used by himself and his sons. He knew nothing about the ammunition and had not been shown the evidence. His explanation on this point can be accepted.
At the same time police conducting a search of the premises located an unregistered air rifle in a plastic bag, unsecured in one of the upstairs bedrooms (ibid.). The applicant was emphatic that the rifle did not belong to him and he did not know who owned it. It was found in an upstairs bedroom, whereas he and his wife have their bedroom on the ground floor. Here again, his account is credible.
Also arising out of the events on 14 August 2021 was the report relating to the police visit to the applicant's home on 24 December 2021. He admitted being uncooperative with the police on that occasion, but said he had sought legal advice and had been told he was not obliged to talk to the police. When police explained that it was an AVO check and the law permitted them to visit his home and ask him questions about AVO compliance, he immediately became cooperative and was ultimately described by the officers as "very cooperative and positive".
Dr Joel Radford, the minister of Drummoyne Baptist Church, wrote on 10 March 2023 that he has known the applicant since October 2015 when he first started attending their church services. He became an official member of the church in 2018 and continues to remain a member in good standing. He has served on the Bible reading roster for their public services. Over the years, Dr Radford has regularly met with him to discuss his spiritual and moral growth in Christian values. He has always seen Anthony as a good and open spirit who is willing to learn and develop his faith. He has always enjoyed his times with Anthony and appreciated his input into his ministry and friendship. His attendance on a Bible teaching tour of Israel with his wife Susan, son Luke and Dr Radford himself was a particular highlight of his work with Anthony.
The applicant has also been helpful to certain members of the church. In April this year, he was one of the few people who was able successfully and tactfully to confront and rebuke someone at their church for ungodly behaviour. The person responded well to the counsel that Anthony gave and is doing much better as a result. Dr Radford was particularly thankful for Anthony's intervention at that time, as repeated attempts by himself to help the person had failed.
On the day that Anthony was released from his arrest, Sunday 15 August, he had telephoned Dr Radford, who counselled him and prayed with him on the telephone. He is aware that Anthony is seeking to have his licence revocation set aside. He believes that the night in custody has had a profound effect on Anthony and he will never make such a mistake again. He hopes to be able to walk with Anthony and his family for years to come.
Dr Radford writes that he will continue to provide counsel and encouragement to Anthony so that he continues to grow in his submission and service to God and to the governing authorities appointed by God in our society for his good and the good of his fellow man.
The standards of fitness and propriety required of applicants are strict, but applicants are not expected to have led exemplary lives. The evidence shows that the applicant has moved on from the turbulent periods of his life and from his youthful errors. He occupies a responsible senior executive position in a major international corporation. In his oral evidence he displayed commendable candour to a relatively unusual degree. He is now a fit and proper person to hold a firearms licence and I so find.
The tribunal may take into account matters indicating conduct not in the public interest, whether or not that conduct rises to the level of criminality, including when the conduct has not led to a conviction (Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 11, [62] - [64]; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70).
The respondent submitted that the tribunal could not be satisfied that there would be no risk associated with restoring the applicant's firearms licence. Records held by the Commissioner showed that he had a history of aggression, violence and repeated failure to comply with the requirements under the law, which is not conducive to holding a firearms licence. Consequently it would not be in the public interest for the applicant to hold a firearms licence under s 24(2)(d) of the Act and cl 20 of the Regulation.
Revocation decisions under s 24(2) of the Firearms Act are discretionary. For the reasons set out above in relation to fitness and propriety, I think the evidence shows that the applicant is a responsible member of society and can be relied on to comply with the requirements set out in the firearms legislation. There is no significant risk to the public (including to the applicant himself) involved in granting him a firearms licence. As was said in Webb, "Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". I therefore find that it would not be contrary to the public interest for the applicant to hold a licence. The decision under review should be set aside.