Finlay v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-06-15|Before: Health J

Bartier Perry Lawyers (Respondent) File Number(s): 2022/00054227 Publication restriction: Pursuant to s 64 (1) (b), 64 (1) (c ) and 64 (1) (d) of the Civil and Administrative Tribunal Act 2013, the publication and release of the material in those paragraphs marked '[Not for publication]' are not to be published or released to any person other than the respondent or their representative.

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to revoke the applicant's Category AB Firearms licence application on 14 October 2020 and the decision on Internal Review on 8 February 2022 to affirm that decision.

Background

On 3 June 2017 Police issued a category AB firearms licence to Mr Finlay. The licence had been sought for the genuine reason of 'Recreational Hunting / Vermin Control' and 'Sport / Target Shooting'. This was the first time that Mr Finlay had applied for and been issued with a firearms licence. The licence was issued for five years and due for expiration / renewal on 3 June 2022.
The Commissioner identified a number of concerns relating to Mr Finlay since the licence was issued in June 2017. Leading up to the decision to revoke the licence in October 2020 the Commissioner noted the following incidents which occurred in the months prior to the revocation. These included an incident in July 2020 where Mr Finlay was reported to have entered a construction site and assaulted a worker, a Mr Thorburn, over a debt issue. Mr Finlay is alleged to have grabbed Mr Thorburn by the neck lifting him to his feet and then punching him in the face with a closed fist before pushing him backwards. The reported version of events is supported by a workplace investigation into the incident.
In August 2020 Mr Finlay was involved in an altercation with four other men over an agreement to collect firewood from his residence. A disagreement ensued and a standoff between Mr Finlay and the others followed. Mr Finlay is alleged to have walked into the garage and returned with a handgun. Police accepted the version of the four men mainly due to the report received on the earlier triple 0 call, and that Mr Finlay's witness (his partner's version) appeared scripted and rehearsed.
On 13 September 2020 concerns were raised in respect of Mr Finlay's welfare when he left his residence without his mobile phone and said 'sorry and goodbye' to his wife and children. Mr Finlay's wife informed Police that this behaviour was out of character for Mr Finlay and reported him as a missing person. Police developed concerns about Mr Finlay's mental health as a result of the nature of this incident, notwithstanding Mr Finlay's subsequent coming to attention unharmed.
On Internal Review Mr Finlay's Solicitor made submissions about the revocation decision. The submissions addressed the August and September 2020 incidents only.
In respect of the August incident (the confrontation with four men and alleged production of a firearm) the submissions indicated that Mr Finlay denies ever producing a firearm but produced a star picket in an attempt to defend himself. The submissions state that one of the other party said that Mr Finlay threatened to get a gun, and that this statement was made in the absence of any evidence to that effect. Submissions also canvassed the opinion of one of the attending Police who apparently subsequently stated that they had no issues with Mr Finlay's firearms licence being reinstated.
In respect of the August 2020 (missing person / mental health incident) it was submitted that Mr Finlay had just learnt that his partner was having an affair and his statement 'sorry and goodbye' was in the context of his marriage having failed and ended, and that he was leaving. The submissions indicate that Mr Finlay went to a friend's home some two hours away in order to clear his head and he instructed his friend to say that if the partner called they had not been in contact with him. Submissions were that Mr Finlay had no thoughts of self-harm.
In conducting the review, the reviewer made the following material findings of fact:

Two offences of stealing and one offence of unlawfully using a conveyance were found proven against Mr Finlay in 1989.
Mr Finlay was subject to an Apprehended Violence Order (AVO) in 1994/95.
Between January 2001 and August 2001 Police were called to two domestic violence disputes between Mr Finlay and his then partner and made subject to an Interim AVO.
Between October 2004 and December 2011 Police were called to five domestic disputes involving Mr Finlay and his then partners.
Between January 2020 and October 2020 Police intervention was required on five occasions due to domestic issues involving Mr Finlay.
In September 2020 Mr Finlay was reported missing and Police held concerns about his psychological welfare.
In August / September 2020 Mr Finlay moved the storage of his firearms from his approved storage location to a location in Little Street Camden and failed to notify Police of this change.
In October 2020 an application for an AVO was initiated against Mr Finlay, being later withdrawn / dismissed.
Mr Finlay's traffic record is extensive.

The decision maker found that the above findings demonstrated that Police were called to intervene on 12 occasions in respect of domestic matters involving Mr Finlay's partners. The decision maker also relied on reports that had been made to Police concerning alleged assaults or attempted assaults by Mr Finlay. The decision maker found that these matters demonstrate that Mr Finlay acts with violence and aggression when there is little or no provocation.
The decision maker also observed that firearms regulation is strict and one of the reasons being that firearms are often involved in domestic disputes and routinely cause death and disfigurement. Reliance was also placed on Mr Finlay's traffic history which was described as 'extensive' and observed 35 infringement notices and three cancellations of licence and three suspensions of licence during the entire licence history. The reviewer observed that '.. your extensive traffic records provide for concern that you will take the same lax approach to the strict requirements which govern firearms legislation'.
Reference was made in the review decision to the observations of the Administrative Decisions Tribunal (ADT) in the case of Tannous v Commissioner of Police [2011] NSWADT 116 observing that the Tribunal has previously held that traffic laws and regulations are aimed at ensuring public safety, and repeated breaches of those laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety and shows a lack of compliance with the law generally.
A further matter relied upon by the decision maker concerns an unauthorised change in storage location for Mr Finlay's firearms prior to the revocation notice. The issue being that Mr Finlay failed to notify the Firearms Registry. A final matter concerned the disposal of the registered firearms by Mr Finlay to a Dealer prior to any revocation. In this regard the decision maker observed that Mr Finlay no longer had a need for firearms and found that it would be difficult for Mr Finlay to maintain that he had a genuine need for firearms when he had clearly stated that he had disposed of them to a Dealer.
The decision maker concluded that there was an overall risk to public safety regarding Mr Finlay having access to firearms and as a result affirmed the earlier revocation decision.

Jurisdiction

The Notice of Revocation was issued under the provisions of the Firearms Act section 24. Relevantly section 24 provides: 24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if - (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.. ….
Clause 20 of the Firearms Regulation 2017 provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [24] above.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

The parties agree that Mr Finlay filed his application for Administrative review on 24 February 2022. As the Internal Review was only dated 8 February 2022 regardless of what date Mr Finlay received notice of the Review, the application was filed within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioners delegate:

Is it in the public interest for the applicant to hold a licence?

This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

Exhibit 'A-1'. Statement of Alan Finlay dated 21 April 2022.
Exhibit 'A-2': Further Statement of Alan Finlay dated 3 June 2022.

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act.
Exhibit 'R-2' Statement of Senior Constable Regan Doring dated 19 May 2022.
Exhibit 'R-3' Statement of N. Thorburn dated 19 May 2022.

Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Finlay was subject to cross-examination at hearing.
The Commissioner relied on confidential evidence which was considered at a further sitting of the Tribunal on 3 August 2022. At the conclusion of the open hearing on 15 June 2022 the parties consented to this approach, both having made written submissions concerning any orders that the Tribunal might make under sections 45 and 64 of the NCAT Act or s 59 of the ADR Act.
The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence. In this regard both parties made open submissions as to why the material should or should not be received in that manner. In these reasons for decision the Tribunal has decided to receive that evidence on a confidential basis.
Having reviewed the material, the evidence suggests that the circumstances of this case are sufficiently special that the making of the orders sought is "desirable" within the meaning of s 64(1). Mr Finlay submitted that such an approach would amount to a denial of natural justice and procedural fairness. He submitted that he would not have the benefit of rebutting the evidence. In response to the Commissioner's submission that the evidence would constructively identify any witness Mr Finlay suggested that relevant portions could be redacted.
The respondent submitted that the evidence was highly relevant to the proceedings, and the witnesses could be constructively identified.
Before making any order the Tribunal must be satisfied that it is appropriate to make the order in the circumstances. The Appeal Panel of the former Tribunal has examined the circumstances where it would be appropriate to make an order.
In the case of State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69, the Appeal Panel of the ADT examined the equivalent provisions in the ADR Act at, [50] - [53] and [81] - [82]: 50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word 'desirable', the phrase 'for any other reason' and the word 'may'. These indicate that the purpose (or purposes) to be served by a suppression order may be 'any … reason' (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is 'desirable' and that the actual making of the order is not mandatory but within the Tribunal's discretion. 51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is 'really necessary to secure the proper administration of justice in proceedings before it'. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act. 52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym. 53 In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. … 81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. 82 In view of Ms Johnson's submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition….Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24].
Having reviewed those provisions and the evidence, I propose to make the orders as sought. In my view that evidence makes a clear and strong case for the grant of confidentiality.
The Tribunal is therefore required to have regard to the confidential evidence (as now received) and when considering it, the Tribunal cannot disclose the details of that evidence when determining whether granting Mr Finlay the licence would be in the public interest.
For those reasons a number of paragraphs that deal with the confidential evidence are marked '[Not for publication]'.

Mr Finlay's evidence at hearing

In evidence in chief Mr Finlay adopted both his statements. He said that when Police attended in respect of the incident in August 2020 concerning the physical altercation, (the melee incident) no guns were stored at his premises at that time. He said that he had lent his guns to his cousin who had a hunting trip organised. Mr Finlay said that after his cousin used then he intended to hand them on to Bruce Butler who is a Firearms Dealer which his cousin shared a building with.
Mr Finlay was questioned about the matter referred to at [15] of 'R-2' the statement of S C Doring. That refers to Mr Finlay's partner giving her statement to Police at the Police Station about the melee incident and that the officer belied that the witness statement was 'scripted'. Mr Finlay raised an issue within the statement of Mr Thorburn (alleged assault victim) -Exhibit 'R-3', which he said needed to be read in the context that the maker of the statement owed $150,000.00 to various trades including Mr Finlay as a carpenter.
Mr Finlay explicitly denied the matters asserted in [7] of the Thorburn statement - that he got angry and reached out and lifted Mr Thorburn from his seat by gripping his neck. He said that prior to these proceedings he knew nothing about this statement as he had never been spoken to Police about the matter.
In cross-examination Mr Finlay was asked about his second statement (Exhibit A-2). In respect of his traffic record he said that the more than 20 incidents of being caught speeding were over 30 years of driving. He said that some of these were speeding but others related to seatbelt offences, headlights being out and being unlicensed due to disqualifications or suspension.
Mr Finlay agreed that his traffic record was quite large and also when pressed agreed that it was a 'deplorable traffic record'. It was put to Mr Finlay that he has trouble coming to terms with a position that he continues to disregard the traffic laws and rules. He said that his most recent fine was a speeding fine which occurred on a road where the speed limit changed on a stretch of road and he was unaware of the change. Mr Finlay was asked about an incident from 2004 where he was fined for exceeding the speed limit by 30kmph. He was asked why after that incident he did not stop speeding. When asked if he agreed that he had an inability to learn from his mistakes Mr Finlay denied this. He said that he did not believe that he had any inability to learn.
In respect of the Thorburn incident Mr Finlay said that he went to see him about being paid. He agreed that he was annoyed that he had not been paid and said to Mr Thorburn to 'pay me the money owed'. Thorburn apparently answered no, that he had every intention of paying the money but he was still waiting for payment by the customers. Mr Finlay denied that he said that Mr Thorburn should assign a trailer to him for the debt, nor did he concede that he became infuriated and punched Mr Thorburn with a closed fist.
In respect of the melee incident in August 2020 Mr Finlay said that he went into the garage to get a piece of timber. He said that he got the timber to defend himself from the others. He said that he did not obtain it to be a weapon to attack, but only to defend. Mr Finlay conceded that he picked up the star picket and threw it in the direction of his attackers.
In respect of Senior Constable Doring's statement Mr Finlay said that he was shown snippets of the footage Police held when he went into Wyong Police Station to do his statement. The footage he saw mainly showed the father of the group of protagonists complaining about the situation. In respect of the CCTV equipment that was at Mr Finlay's premises that might have captured the incident, he said that the 'hard drive had collapsed' due to problems in the roof / eave where it was installed.
Mr Finlay was questioned about his firearms licensing course and he advised that it occurred three to four years ago. In respect of the change of address of the storage of the firearms Mr Finlay said that he was not aware at the time that he did it that he was required to notify the Registry. He said that he only became aware of this requirement during the course of these proceedings.
In respect of the incident later in 2020 where his partner reported him missing, and the guns had been relocated, Mr Finlay said that his cousin had the guns for less than a week, whereas Police say it was six weeks. When it was put to Mr Finlay that Police believe he told them the period was six weeks, he denied this at hearing. Mr Finlay maintained that the were relocated for less than a week and that 'when the Police asked me, I told them five days, six days, about a week'. He said that it could have been that his cousin had the guns for about a week and then gave them to Bruce Butcher the Dealer.
Mr Finlay said that he had the licence for target shooting at a range and recreational hunting with the Central Coast Muzzle Loaders. He said that he did not renew his membership with that organisation and did not attend competitions with them. Mr Finlay said he also joined the SSAA.
Mr Finlay also admitted that he yelled abuse to his partner and was angry the evening before he left home and was eventually reported missing. He denied that he started an argument but admitted that tempers were frayed because of what had transpired between the two.
In re-examination Mr Finlay was asked about his driving history. He said that he got his Learner's permit in 1988, his P Plates in 1989 and his full licence in 1990. He said that he had 31 years driving licence history. He was self-employed as a Carpenter since August 2000. Prior to that he was a 'wages carpenter' as in being employed. He had experience in forklift and motorbike sales as well. He said that his driving record needs to be considered in the context of driving 40,000 kilometres per annum. Mr Finlay said that he could not recall every single speeding matter.
Mr Finlay explained that the hard drive for his CCTV in the ceiling 'collapsed' because it was too hot and too cold.
In respect of the change of storage location Mr Finlay said that he had completed the paperwork concerning the change of address. He also said that he contacted Police the day after he was first reported as missing.
In respect of the breakdown in his relationship previously referred to in the evidence Mr Finlay said that his divorce will be finalised on 22 July 2022. He is no longer a member of the SSAA as these legal proceedings about his licence (and the review) have taken so long. Mr Finlay said that he was also a member of the Central Coast Muzzle Loaders and that he joined them prior to his membership with the SSAA expiring.
The Tribunal asked a number of questions of the witness consistent utilising its powers under s 38 of the NCAT Act. Mr Finlay was asked whether the cousin was registered to possess firearms and what sort of licence was held if any. Mr Finlay said he understood that it was the same licence as his.
The Tribunal asked Mr Finlay specifically about why he went into the garage during the 'melee incident' in August 2020. He said that did not go in there to get a firearm or even a replica firearm. He said that he picked up something out of the back of his Ute but was vague as to whether it was a hammer or not. Mr Finlay said that 'when I ran around the Ute they were screaming "he's getting a gun.. he's got a gun" and they kept screaming this and retreated'.
Mr Finlay went on to say that when he picked up the start picket he 'threw it 30 metres', but reassessed his answer as being '20-30 metres'.
In his written evidence Mr Finlay in Exhibit 'A-2' refers to a plan to move his firearms to another location because he became aware that his partner was planning to call Police and have the firearms and licence taken off him. This was not further particularised other than an inference in the statement that it was related to the separation.

Commissioner's evidence

The Commissioner relied upon the material outlined at [30]. As noted above neither of the Commissioner's witnesses were required for cross-examination at hearing.
The statement of Senior Constable Doring referred to inconsistencies between Mr Finlay's account of the exchange with the witness and the witnesses' version. The witness denies ever stating that he had no issue with Mr Finlay holding a firearms licence. The witness recalled that he said words to the effect of: 'If you were charged, I would have been suspending your firearms licence'. The statement refers to the body worn video when the witness asks Mr Finlay what he grabbed from the garage during the melee. Mr Finlay is recorded as saying: 'nothing, nothing, I didn't see anything I was just after a piece of wood.'
The statement refers to Mr Finlay's partner's Police statement being scripted (as referred to at [42] above) and suggests that the lack of direction or prompting needed when describing the assault was unusual in the experience of the witness, but also made an observation that two weeks prior when the incident occurred the partner was unable to provide any cogent version of events.
The witness goes on to refer in their statement to interviews with the other party / group in the melee. Two of the three individuals interviewed refer to Mr Finlay having a gun and one reported that Mr Finlay stated that he had a gun. The interviewees believed that Mr Finlay was the aggressor and believed that his CCTV cameras would show the real version of what happened and corroborate that they were attacked and driven out.

Applicant's submissions

Mr Finlay relied on written submissions and his lawyer made oral submissions at the conclusion of the hearing. In oral submissions it was submitted that in relation to the 'wood cutting' (melee) incident there was no evidence of any pistol being located. It was submitted that Mr Finlay could assume that Police searched the premises.
In respect of the traffic record it was submitted that Mr Finlay accepts that the record is what it is. It should be viewed in the context of a 30 year plus history with a high number of kilometres travelled per annum throughout the period. Mr Finlay has no PCA (Alcohol) or reckless driving offences.
Mr Finlay submitted that the majority of offences are when he was a much younger man and that he has only had five matters in the last 14 years.
Mr Finlay also submitted that there had been no notified or detected breaches of the Firearms Act formalised prior to the Notice of Revocation.
In written submissions reference was made to the vast number of COPS Entries tendered in the s 58 material and that no offence was detected or that Police held no fears in respect of Mr Finlay's behaviour. A concern was raised that the Notice of Revocation was based only on two COPS Events, but now on administrative review the dozen or so events referred to above were being relied upon.
In closing Mr Finlay submitted that any risk in holding a licence must be real and appreciable and that the material submitted to the Tribunal does not allow such a conclusion to be drawn.

Commissioner's Submissions

The Commissioner made oral submissions at the conclusion of the open session. The Commissioner submitted that there were a number of points which weighed against Mr Finlay having access to firearms. The first point was that the evidence of the two police witnesses (SC Doring and Mr Thorburn) was before the Tribunal and not challenged by Mr Finlay. In addition, the position that a licence was first obtained in 2017 and some of this material predates that time does not limit the Tribunal's ability to look at it and weigh it up accordingly. Further, the matters outlined in [22] of the Commissioner's written submissions that there is a history from 1994 to 2020 of domestic violence related matters.
The Commissioner also submitted that Mr Thorburn had reported an assault in July 2020 and the melee incident (also involving allegations of assault) occurred the following month. Mr Finlay had not challenged Mr Thorburn's account by testing his evidence under cross examination. In addition, in respect of the melee / woodcutting incident one version of the evidence is that Mr Finlay went to the garage and produced a firearm. Even on his open account in respect of a piece of wood to defend and arming himself with a star picket the Commissioner submitted that Mr Finlay's evidence was unconvincing. It was submitted that all parties were consistent on Mr Finlay arming himself with a star picket. The introduction of his evidence about obtaining a hammer from his ute was a late introduction.
Finally, the Commissioner submitted that Mr Finlay's deplorable traffic record showed a disregard for the law. It was submitted that Mr Finlay struggled during the open hearing to concede that his record was very poor. The Commissioner submitted that Mr Finlay did not learn from his mistakes.
The Commissioner also made submissions concerning compliance with the Firearms regulations and rules as well as the quality of Mr Finlay's evidence. It was submitted that at paragraph [10] to Annexure 'B' of Exhibit 'R-2' the evidence indicates that the firearms were not at Mr Finlay's residence on 11 August 2020, and were still not at the resident on 14 September 2020. This the Commissioner submitted was approximately a six week period and that the failure to comply with the requirements and make a notification of a change of storage address was a serious matter irrespective of whether any legal proceedings were commenced or not by the Commissioner.
By consent a further timetable for open submissions was ordered at the conclusion of the confidential hearing on 3 August 2022. The Commissioner provided further submissions and Mr Finlay did not. Those submissions concerned some new evidence that had come to light concerning Mr Finlay's various memberships to substantiate a 'genuine reason' for needing a firearms licence.
The additional material sought to be tendered constitutes correspondence from the Sporting Shooters Association Australia (the SSAA) which identifies Mr Finlay's periods of membership at September 2017 until September 2018. The membership was renewed in October 2019 some 13 months after it had previously lapsed. The Commissioner submitted that the SSAA membership commenced three months after his prior membership with the Central Coast Muzzleloaders had lapsed, as well as the period of 13 months non-membership during the relevant licenced history.
The Commissioner submitted that this evidence was at odds with Mr Finlay's evidence during cross examination in the open hearting and prima facie showed a breach of s 12 (4) of the Firearms Act and Clauses 15 and 108 of the Firearms Regulation.
The Commissioner submitted that this material should be admitted as it established that Mr Finlay did not maintain his membership and a genuine reason for the licence, in breach of the regulations, he failed to notify of the lapse / change within 14 days, being a further breach, and that he failed to participate in the requisite number of target shooting sessions to maintain the genuine reason for his licence.
In the absence of any submission to the contrary from Mr Finlay, noting that he has been on notice of this matter since 3 August 2022, I have decided to admit this material in light of the evidence that Mr Finlay gave at hearing.
The Commissioner in written submissions relied on the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. Reference was also made to Livadaru v Commissioner of Police [2008] NSWADT 160 where Deputy President Hennessy referred to the public interest at [54]: In considering the public interest, regard must be had to the underlying principle of the Act. ….
The Commissioner also referred to the Appeal Panel case of Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 (Lee), concerning giving proper consideration of all relevant matters when determining matters as to the public interest. At [24] - [25] of Lee the Appeal Panel observed: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
It is now necessary to consider the confidential material tendered at the confidential hearing on 3 August 2022

confidental paragraphs

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Consideration

The decision under review is based upon the notion that Mr Finlay having access to firearms would be contrary to the public interest. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered as per the reference to Livadaru at [80] above.
The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
Mr Finlay has a documented history of violence albeit resulting in minimal criminal Court outcomes. His record of standing and involvements in domestic matters where violence is alleged is greater than his own characterisation of such events. Whilst he could not recall some historic matters in detail there appeared to be a lack of insight and understanding of his role in the Police interactions. Likewise, his inability to show any insight into his traffic record (other than to explain it in the context of 35 years driving with high distance travelled per annum) is in my view telling of his lack of insight.
I note that whilst not the main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.
In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In applying the discretion for the public benefit, having considered both the open evidence and the confidential evidence I find that there are matters which on an objective test (having regard to the objects of the legislation and cases referred to above) which would prevent Mr Finlay being granted the licence.
Having reviewed his evidence about the incident that occurred in August 2020 at his then residence I do not accept all of his evidence as credible. The evidence about the gun (denied), the piece of timber, the star picket and then before me, a reference to picking up a hammer from his tool bag in his ute, seemed opportunistic and an attempt to minimise his behaviour and deflect away from the possibility that there was a firearm present.
The other witnesses were unaware that the CCTV was not working and had encouraged Police to view it to verify their version of events.
I find to the requisite standard that the evidence indicates that Mr Finlay brandished what appeared to be and was intended to be a firearm (possibly) in order to defuse the situation during the melee in August 2020 and see off his attackers.
Mr Finlay's traffic record works against him due to the image it paints of a person who will disregard the law when necessary. These matters also go to public safety.
In addition, I have placed some weight on the confidential material which whilst unfair to Mr Finlay, it is of some probative value and must be given some weight notwithstanding that it cannot be tested further in these proceedings.
Concerning the evidence about brandishing a firearm and the finding I have made at [107] above, such behaviour is a breach of the Firearms Legislation.
As I observed in the case of Lando v Commissioner of Police [2021] NSWCATAD 8 the holder of a firearms licence is never permitted to utilise a firearm in any manner for self-protection. 78. I note that s 4 of the Firearms Act defines 'use of a firearm' in the following manner: use a firearm means fire the firearm or hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired. 79. Clearly the applicant by his own account took the firearm to use in a manner consistent with the definition above, and in doing so, he was not participating in Recreational Hunting (or) Vermin Control. In this regard the evidence establishes that the applicant has used his firearms contrary to the provisions of s 12. 12 Genuine reasons for having a licence(cf APMC 3, 1990 Reg cl 22A) (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons - (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section). 80. It is clear from the evidence that the circumstances of the use by the applicant were contrary to his own permitted 'genuine reason' under the licence. In addition, I find that the use contravened s 12 (2) of the Act as it was clearly being used for personal protection. To alert witnesses to a situation with a firearm in my view constitutes behaviour which falls within the ambit of personal protection. If there was no risk or danger then there would be no need for any 'alert'. The applicant and his wife were responding to a threat and he took drastic and exigent action to arm himself, and secure the property and plan an escape. On the applicant's own evidence, he believed that his son had arrived at the property and was going to carry out his threats from some hours earlier and harm or even kill the applicant and / or his wife. On this basis his actions clearly on the available evidence fall within the scope of what would be considered the use of a firearm for 'personal protection' (his own) protection of 'any other person' (his wife) and possible protection of his property. 81. It would also appear that the conduct falls within the parameters of s 7A of the Firearms Act. 7A Offence of unauthorised possession or use of firearms generally (1) A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. Maximum penalty - imprisonment for 5 years. (2) Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person - (a) uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or (b) contravenes any condition of the licence. 82. On the available evidence noting the reasoning and findings that I have made above, it would appear that to the civil standard s 7A of the Firearms Act has been breached as the applicant has used a firearm in the circumstances set out in s 7A (2) (a) and I so find.
In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "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".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, including the confidential evidence, it would not be in the public interest to reinstate the licence.
Having regard to the cases referred to above in my view it would be contrary to the public interest to reinstate Mr Finlay's firearms licence and I so find.
As the revoked licence has now lapsed even if the decision was set aside, there is no current licence in place.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following orders:

Orders 1. The decision to revoke the Applicant's Category AB Firearms Licence is affirmed. 2. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement. 3. Pursuant to s 64(1)(c) of the NCAT Act, the publication of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1 is prohibited. 4. Pursuant to s 64(1)(d) of the NCAT Act, the disclosure of the Confidential Material and confidential exhibit CR1, or matters contained in the Confidential Material and confidential exhibit CR1, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the NCAT Act, the publication and recording of the confidential hearing of these preliminary proceedings, including confidential exhibit CR1 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

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: 07 November 2022

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (11)