Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Commissioner of Police v Toleafoa [1999] NSWADT AP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Commissioner of Police v Toleafoa [1999] NSWADT AP 9Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60ERD v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 183Grant v Commissioner of Police [2020] NSWCATAD 158Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Kalinic v Commissioner of Police, New South Wales Police [2006] NSWADT 227Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Lahood v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 18McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 111Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Category: Principal judgment
Parties: Ms Taya Fisher (Applicant)
Judgment (12 paragraphs)
[1]
Solicitors:
Office of General Counsel, New South Wales Police Force (Respondent)
File Number(s): 2021/00220002
[2]
reasons for decision
The applicant Mrs Taya Michelle Fisher applied to this tribunal on 2 August 2021 for review of a decision by the respondent Commissioner on 28 July 2021 revoking her category AB firearms licence No. 410062845.
The licence had been issued to her on 24 December 2019 to expire on 24 December 2024, but it was revoked on 11 June 2020 (exhibit R1, pp 48 - 49) on the ground that she had been convicted at Wagga Wagga Local Court on 1 June 2020 of a prescribed offence within the meaning of s 11(5)(b) of the Firearms Act, that of using a false document to obtain a financial advantage. She was sentenced to a community correction order (CCO) for a period of 12 months, concluding on 31 May 2021.
The applicant applied for an internal review of the revocation decision on 30 June 2020 (exhibit R1, pp 50 - 51), but the internal review affirmed the decision on 28 July 2021 on the grounds of the criminal conviction, because of events during prior "tumultuous domestic relationships" and because in November 2018 a large hunting knife had been located in her vehicle parked at Junee Correctional Centre, it being an offence to possess weapons on those premises (exhibit R1, pp 52 - 55). She then applied to this tribunal for review on 2 August 2021.
[3]
Applicable legislation
Section 24(2)(a) of the Firearms Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 11(5)(b) states that a licence must not be issued to a person who "has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law".
For the purposes of that provision, cl 5(1)(f) of the Regulation includes within the class of prescribed offences "An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond".
Under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, a community corrections order (CCO) replaced a good behaviour bond made under the repealed provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999. Clause 77 of schedule 2 ensures that a reference to CCO will apply where the Act refers to a "good behaviour bond".
Section 24(2)(b) lists a number of other grounds on which a licence may be revoked, including "(d) for any other reason prescribed by the regulations". Clause 20 of the Regulation 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 issue in this application is thus whether the correct and preferable decision is to affirm or set aside the revocation decision by reason of (a) the applicant's having been convicted of a prescribed offence, or (b) because it is not in the public interest for the applicant to continue to hold the licence.
[4]
The evidence
The respondent called no oral evidence but relied on the documentary material (exhibit R1) and on cross-examination of the applicant.
The applicant tendered a written statement (exhibit A1) in which she stated that she is 39 years of age and has held a firearms licence since 2009, but grew up around firearms through membership of navy cadets and recruit school in Victoria. She had been responsible for firearms for the better part of 12 years, despite being involved in domestic violence relationships. The men involved in those relationships are no longer in her life and she has been happily married to her husband, with whom she also works. There is no form of domestic violence in the home.
Throughout the past 10 years, while she served as a correctional officer and court escort officer, she was always armed and never presented a danger. On many occasions she came to the aid of police at the stations she was assigned to, and had a good relationship with her colleagues. On numerous occasions throughout that time, she reported not only drug houses and crimes to police, but also when a man had presented with an unlicensed, unregistered firearm. She understands the damage that firearms can do and that they must only be kept by responsible people.
In November 2018, as staff were walking past her utility in the car park at Junee Correctional Centre, there were empty beer cans in the back of the vehicle. It was only because they had a beer logo on them that they prompted a search of the car, to which she consented without hesitation. When they were searching the car, she told them about the knife under the seat, which was used for cutting up roadkill and feeding WIRES (New South Wales Wildlife Rescue Service) birds which her friend rescued. She consented to their taking the knife, stating it was not worth the hassle, and ultimately the gaol governor simply stated that they needed to remember not to be complacent with what was left in a car. Police informed her that it was a legitimate reason to have a knife, properly sheathed, and that it was just not allowed on the property (the car park) of the facility. Police later called her and asked if she would like the knife back and asked her to collect it from Temora station.
Throughout her time at the Wagga Wagga/Junee Community Correctional facility, she was horrendously bullied by a co-worker and superior. She reported it to her manager in tears, and the manager stated that he liked the fact that she was crying, it showed that she was human. But he failed to deal with the problem. That continued on numerous occasions. She attended the doctor on a few occasions, only to have the person responsible for the bullying out the front interrogating her on why she was there. She could not face it at that time and instead of taking the matter to the Fair Work authorities, although the union has also been informed, she stayed at home curled up and did not go to work. She had also reported the problem to another area manager, who stated that he had seen her at first hand being bullied and that management has refused to address it. She had made a mistake by allowing a bully to get to her, but she would never have hurt anyone. She simply bottled it up and hid. What she did was absolutely wrong, but she was never a danger to anyone.
[5]
Respondent's submissions
The respondent tendered written submissions (exhibit R2) which, after describing the background and circumstances of the case and the applicable law, noted that the applicant had not come to adverse police notice for misuse of firearms as a licence holder. That matter, and the absence of any criminal record before 2020, was given appropriate consideration in the respondent's decision-making process.
The applicant was convicted of matters of dishonesty at Wagga Wagga Local Court on 1 June, 2020. The specific offences were two counts of "Use false document to obtain financial advantage". Dishonesty is an element of each offence and there appeared to be no issue or disagreement in material tendered by the applicant that she acted dishonestly at the relevant time in providing false documents. Each offence carried a maximum penalty (if dealt with on indictment) of 10 years' imprisonment. They are thus serious offences.
The respondent contended that the applicant either did appreciate, or at the least should have appreciated, the significance of entering pleas of guilty in the circumstances in which she did at Wagga Wagga, and thus the possible or likely consequences on the validity and continuation of her firearms licence. Further, the presiding judicial officer at Wagga Wagga Local Court had on at least three occasions given the applicant an opportunity to obtain legal advice. Her attribution, at least indirectly, of the revocation of the licence to the advice provided by a police officer served only to detract significantly from her credibility. Further, her submission demonstrated an evasion of responsibility for the offences charged, particularly in relation to the acceptance of the consequences flowing on conviction.
Lending weight to the above submissions, the respondent continued, the applicant was found in possession of a large hunting knife within the grounds of Junee Correctional Centre in November 2018. Although not the subject of a criminal prosecution, it was apparent that the applicant had told police at the time that "her partner" had left the knife in the vehicle, but in her written submissions to the tribunal, by inference at least the applicant contended that the item was hers and gave reasons why she had in her possession.
The respondent conceded that the decision under review was a discretionary one, but submitted that where a conviction for a prescribed offence applied against a current licence holder, then only in exceptional circumstances should the discretion not be exercised in favour of revocation. Further, in Kalinic v Commissioner of Police ([2006] NSWADT 227, [21], [23] the tribunal had affirmed that it would be anomalous that a conviction after a licence had been granted should be treated differently to a conviction before a licence application.
[6]
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). 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.
[7]
Conviction of prescribed offence
The first ground on which the respondent argues in support of licence revocation in this case arises from the applicant's conviction in Wagga Wagga Local Court on 1 June 2020 on two counts of the offence of using a false document to obtain a financial advantage. Dishonesty is an element of those offences and there is no dispute that the applicant acted dishonestly at the relevant time in providing false documents. A conviction was recorded and the applicant was placed on a 12-month CCO which expired in May 2021. The offence which the court found proved is prescribed by cl 5(1)(f) of the Firearms Regulation for the purposes of s 11(5)(b).
For the purposes of that provision, cl 5(1)(f) of the Regulation includes within the class of prescribed offences "An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond".
Under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, a community corrections order (CCO) replaces a good behaviour bond made under the repealed provisions of s 9 of the Crimes (Sentencing Procedure) Act 1999. Clause 77 of schedule 2 ensures that a reference to CCO will apply where the Act refers to a "good behaviour bond".
[8]
Legal framework
Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which a licence would be required to be refused. Section 11(5)(b) stipulates that a licence must not be issued to a person who has, within the 10 years preceding the application, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations.
As s 24(2) states that a licence "may" be revoked for those reasons, revocation on those grounds is not mandatory and the respondent (and on review this tribunal) has a discretion in the matter. Mr Lowe submitted that it would be anomalous, as the tribunal had said in Kalinic v Commissioner of Police, New South Wales Police Service [2006] NSWADT 227, [23], that a person who is convicted of a prescribed offence or made subject to a CCO is disqualified from applying for a licence, but if the same person is convicted of a prescribed offence or made subject to a CCO while holding a licence, the tribunal has a discretion with respect to whether the licence should be revoked:
A number of recent cases have taken a different view, however. In Grant at [28], Lucy SM had this to say:
I accept that, in certain respects, it may seem "anomalous" for a conviction or a finding of guilt to be treated differently before and after the grant of a licence. However, as Senior Member Walker said in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59], this situation "is not necessarily anomalous." The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way.
The Grant approach found favour with Isenberg SM in ERD v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 183, [20]:
The Respondent submitted that the approach in Grant was contrary to the statutory intention and earlier approach taken by the Tribunal, and presumably on the basis that to require "special or exceptional circumstances" is to apply a higher standard. The two approaches are, in my view, not inconsistent. It is clear that the Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Act, and that the circumstances of each Applicant are to be considered, especially in light of the "anomaly", to which I have referred.
[9]
The facts of the prescribed offences
The police fact sheet for charge H73173014 (exhibit R1, pp 4 - 9), the contents of which the applicant does not challenge, records the use by the applicant of nine false medical certificates between 11 September 2017 and 30 June 2018. In seven of the instances, the applicant completed an application for leave of absence and marked the box labelled "sick with medical certificate". She attached a medical certificate to the application form which appeared to have been obtained from a particular medical practitioner in Junee. The form was then scanned and uploaded into the Corrective Services New South Wales system along with the medical certificate. The certificate was in the applicant's name.
In the ninth instance, on 19 March 2018, she completed and dated a leave form and marked a box "sick as carer's leave," and attached a medical certificate in the name of Mr A**** Smith that appeared to have been obtained from the same Junee medical practitioner.
When checking one of the leave applications, an administrative assistant noticed that the medical certificate provided was written by Dr *** of the Junee Medical Centre. From local knowledge, the assistant was aware that Dr **** had left that practice in January 2018. Police contacted the doctor in relation to the certificates. He stated that he had only seen the applicant on one occasion in his Junee practice, on 27 September 2017. He also said he did not have a patient by the name of A**** Smith and observed that the signatures on the nine certificates all appeared different and none of them was his signature.
When interviewed the applicant stated that her creating the false medical certificates had stemmed from being bullied at her workplace for some time, but she had not made a formal complaint about it. She said she was so sick that she could not get out of bed to drive the distance to the doctor to be seen and to obtain a medical certificate. She stated it was the wrong thing to do, but wanted to be upfront with police about the matter.
There were thus nine instances of an offence of statutory forgery over a period of nine months. Although the sentence of a 12-month unsupervised CCO was close to the bottom of the scale of possible severity, the applicant said that the learned magistrate had declined her request for not having a conviction recorded because of the multiple instances involved. Further, given her background in the corrections system and her work links with police, she could not have been unaware that her conduct in each case constituted a serious offence.
[10]
The public interest
The other ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20.
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.
The respondent relied on a familiar passage in which Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[11]
Orders
1. Decision under review set aside.
2. A category AB firearms licence is to be reissued to the applicant.
[12]
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 November 2021
Parties
Applicant/Plaintiff:
Fisher
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Police called her at work, and although having been advised by the union not to co-operate with them, she did co-operate with police, and admitted submitting a false medical certificate. That was a matter that could have been dealt with internally by demotion or a fine, but she believed in another bullying attempt, was referred to the external police. The detective asked her to meet him at Cootamundra police station and documents were completed there. While she was there, the detective made a telephone call to the Firearms Registry, following which she was informed that she would not lose her licence over the matter.
When it came to court, the officer had apparently made a mistake in the paperwork, as there was no financial advantage attached to the incident. The magistrate had asked her on about 3 occasions whether she wished to seek legal advice. The matter could have been thrown out and have to be restarted, but given the COVID-19 situation and the time already taken, so as not to waste the court's time, and given that she had been told it would not affect her firearms licence, she told the magistrate that she would rather just have the matter finalised. She was given a 12 month unsupervised CCO, knowing that it would be the last time ever she would attend court again. She would never have pleaded guilty without challenging the actual charge if she had known it was going to affect her licence. But she had been told that it would not.
The internal review noted that she had never come to the adverse attention of police before that, and her criminal record had been unblemished. The reviewing officer also stated that he was entitled to use his available discretion in the matter, but chose not to do so, referring to public safety.
As regards her present circumstances, she is the assistant site manager of a grain site, a position with a high level of responsibility. She is responsible for ridding the site of feral cats, but cannot do that effectively without her firearms licence. She also has 20 head of cattle including a bull, so numbers are growing and she cannot protect them from feral dogs or, as had happened two weeks earlier, put down a cow with a broken leg, which is heartbreaking. In the past she had put to sleep kangaroos for WIRES wildlife rescue that had been struck by cars, or helped farmers' wives with injured animals rather than let them suffer while their husbands were away harvesting. She has regularly culled pest animals for other property owners and hunted for food for both the family and her own animals. All was done safely and with no danger to public safety.
In oral evidence by AVL link at the hearing the applicant reiterated those points and explained that she had not endeavoured to obtain a financial advantage through her offences. She did not seek sick pay and would have been paid in any event, even though some of the absences were for several days. The witness added that two weeks ago she had a cow that broke her left rear leg but it was impossible to access her position with machinery because of flooding, and she could not obtain outside help for two days because it was the weekend.
Cross-examined by Mr Lowe on behalf of the respondent, the applicant admitted that she had known preparing the false medical certificates was a criminal offence and imported an element of dishonesty. She had admitted that she had been wrong. She could have obtained legal assistance, and did speak to a union solicitor in Sydney, who had told her not to cooperate with the police. She had been told the offences would have no effect on the licence, but could have consulted a lawyer on that point.
When it was put to her that she knew the detective's telephone call to the registry would not be conclusive, she replied that the detective had been definite about it. She did not blame the police, she was just saying what he had told her. She had no reason to doubt the detective's word. But she did have the opportunity to obtain legal advice. She had received a court attendance notice [summons] and had attended court. The fact sheet that had been tendered to the court was correct. But she believed there had been no financial advantage involved as she would have been paid in any event, having 10 days of sick leave without the necessity to provide medical certificates. It was put to her that she had in fact obtained 17 days' leave, by reason of dishonesty, to which she replied that she was not sure. She agreed that she had pleaded guilty and that it would not have been right to do so if she believed she was not guilty. But she did not believe she had obtained a financial advantage. The officer had made an error on the paperwork. But she accepted responsibility and for that reason had given 100 percent cooperation to the police.
She could have obtained leave without tendering medical certificates, but did not do so because she thought the departmental health officer would give her a hard time and that she would have been even more harassed by her manager. She realized she should have applied for stress leave. She had accepted the consequences of her actions, but her licence meant an incredible lot to her. She had asked the magistrate not to record a conviction, but he had done so as she had committed the offence on more than one occasion.
It was Detective Joseph Coorey who told her that he had telephoned the firearms registry. She thought she would get a correct answer through him and had not made a telephone call herself because she did not think she needed to.
In relation to the 2018 incident with the hunting knife in her utility (exhibit R1, pp 40 - 41) she had herself told the police that it was there and that it belonged to her partner and that it was for cutting up roadkill. He purchased it and owns it, but they both use it and it is always kept under the seat. Actually, it is jointly owned, like everything they own. It should not have been on corrections property, but it was not going to be used within the correctional centre.
There had been previously some incidents involving her ex-partners. One of them was named S****, and an AVO had been taken out against him. He did not know where she was. Another was named G****, and there was no contact between them. She was now in a loving and happy relationship.
The question of public interest in accordance with cl 20 was an inherently broad one that permitted reference to a wide range of factors in making a decision: Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25]. To that extent, character is a relevant consideration when determining public interest, as well as public safety issues: Constantin v Commissioner of Police [2013] NSWADTAP 16.
The tribunal had to be satisfied that there is virtually no risk in allowing the applicant to hold a licence.
In the present matter, factors relevant to public interest included the underlying principles and objects of the Act, the strict controls relating to the use and possession of firearms and the administration of those controls, the nature of the offences, the mandatory refusal regime applicable if the applicant had been a new applicant and the applicant's history of dishonesty.
The respondent submitted that the applicant's demonstrated propensity for dishonesty was reasonably likely to impede her extraordinary obligation and responsibility of ensuring public safety, and was therefore a matter of public interest. The tribunal could not be satisfied that there is virtually no risk to public safety in the applicant having possession of a firearm, and that therefore it is not in the public interest for her to continue to hold the licence. Further, special or exceptional circumstances did not exist in the applicant's case that might otherwise justify exercising the discretion against the revocation of her licence.
In oral submissions at the hearing, Mr Lowe reiterated those points, stressing the "anomaly" identified by Montgomery JM in Kalinic about the absence of any special or exceptional circumstances in the case of a prescribed offence. If the applicant's licence had expired, she would have had to reapply, which would have made her application subject to mandatory refusal. In Kalinic the applicant had also relied on livestock control as a special circumstance, but it was held to be insufficient. The same was true in this case.
Honesty on the part of licensees was important, for the regulatory scheme is a "high trust model" in many respects. The Commissioner's licensing responsibility relies on persons acting "reasonably", as for example in the context of s 39. Because of the applicant's inherent dishonesty, she should not be granted a licence.
The respondent did not dispute the applicant's claims of bullying, Mr Lowe said. But she could have sought a genuine medical certificate. Her attempts to challenge the conviction with an unfounded allegation of absence of financial advantage did not help her, as it showed that she did not accept the consequences of her violations. She could have sought legal advice about the effect of the charges on her licence. She had asked the police officer for guidance, but there is a process to be followed in such cases and this was a serious matter.
Relevant to the public interest was the applicant's history of dishonesty. Her evidence had been confused, and sought to blame others in relation to the advice received and the "paperwork". She could have obtained advice, and not having done so must accept the consequences. It was not the role of the tribunal to go behind the validity of a conviction. There is an inherent expectation in the administration of firearms legislation that applicants will behave honestly. The forgery in this case was not insignificant.
Again, in similar vein, while it was common ground that notwithstanding the conviction of the prescribed offence, the tribunal has a discretion whether to affirm the revocation or not, the respondent submitted that for the purposes of s 24(2)(a), it would only be in special or exceptional circumstances that the discretion could be exercised in such a way as not to revoke the licence. Indeed, in Hamshere v Commissioner of Police, New South Wales Police Force [2012] NSWADT 244, [14], the tribunal did say, "Although the Commissioner has a discretion in this regard where a conviction occurred after the licence has been issued, in my opinion it will only be in special or exceptional circumstances where the discretion is exercised in a way not to revoke the licence".
On the other hand, it should be noted that Hennessy A/DCJ has criticized the practice of placing a "judicial gloss" on the plain meaning of the statutory tests in the Firearms Act: "The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests", her Honour has said (AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [7]). While the statutory discretion thus appears to be unfettered, there should nevertheless be some proportionality between the gravity of the offence and the readiness to exercise the discretion in favour of an applicant, subject also to the Act's overriding objective of protecting public safety.
The respondent also took exception to what was taken to be an attempt by the applicant to challenge the convictions recorded in the local Court. The applicant had argued that she would not have pleaded guilty to the charges, believing she had not obtained a financial advantage from the false certificates, but for the fact that she had been advised by a police officer that the Firearms Registry had said that her licence would not be affected. The tribunal, Mr Lowe submitted, had no role of going behind any judgment relied upon in the revocation decision.
The general rule in such cases is indeed that the finding of a court cannot be challenged before the tribunal other than in exceptional circumstances. Nevertheless, an applicant may present to the tribunal matters pertaining to a conviction or finding of guilt, provided that they do not contradict the facts that had to be found in arriving at such a finding: Lahood v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 18, [73] - [75].
She maintained that she had not gained a financial advantage from the offences because she was entitled to 10 days of sick leave without producing a medical certificate, but in cross-examination she was more uncertain about that as it appeared that she had been able to obtain significantly more leave than she would have been entitled to in that way. In any event, she had pleaded guilty on all charges, and the tribunal cannot go behind those convictions.
As against that, her prior record before 2020 was unblemished. She cooperated fully with police investigating the false certificates, despite having received legal advice from a union lawyer not to do so. She pleaded guilty at the earliest opportunity and accepts responsibility for her wrongdoing. None of the offences related to firearms or public safety. As the respondent correctly said, the licensing system depends on honesty on the part of licence holders, but none of the false documents related to the licensing system.
The applicant has held a firearms licence for 9 years and has been involved with firearms since adolescence. In her work in the corrections system she routinely went about armed, all without coming to adverse notice.
Her explanation for the offences has from the outset been that she had been "horrendously bullied" over a long period by a woman in a supervisory position at work and at times had been unable to function, or even to drive to see a doctor. The respondent very properly conceded the correctness of that claim.
The applicant explained that she had not lodged a formal complaint about her treatment, fearing from experience that doing so would ensure her being bullied all the more. But (and this was not disputed) she did complain to two managers about it. They were somewhat sympathetic but apparently took no remedial action.
No doubt the applicant could and should have found better ways of dealing with her predicament than the one that she chose. But the unchallenged evidence of victimization over an extended period during which all the offences were committed does not support an imputation to her of a general "propensity" for dishonesty, as was contended. The CCO imposed on sentence expired without incident. There appears to be no realistic risk that she would deal otherwise than honestly with the firearms licensing system in the completion of statutory forms or otherwise. In my view the statutory discretion should be exercised in favour of not revoking the applicant's licence on this ground and I so find.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself or herself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The respondent contended, following Constantin, that character is relevant to the public interest and stressed what was termed the applicant's "history of dishonesty", as evidenced by the offences of which she was convicted, and referred to the underlying principles and objects of the Act and the controls that it establishes. While character is certainly relevant, including to issues of public safety, for the reasons given above I do not think the applicant would present any realistic risk in that respect or that she could not be relied on to comply with the statutory system of controls. If she were a new applicant for a licence she would, as the respondent pointed out, face mandatory refusal, but as was explained above there are reasons for the greater flexibility extended in the case of existing licensees with a licence history.
The respondent also referred to the incident in November 2018 when a large hunting knife was found in the applicant's parked vehicle at Junee Correctional Centre, it being unlawful to have weapons of any kind on the centre property. She had told police that it belonged to her husband, but in her statement (exhibit A1) had said it was hers, a conflict with her earlier statement. At the hearing the applicant explained that although her husband had purchased the knife, they both used it in their work for the WIRES wildlife rescue system and effectively were joint owners. As that is a common situation with property in marriages, I do not think the inconsistency is significant. No charge was laid in respect of the incident, the prison governor simply stressing the need for security precautions to be observed. There has been no similar incident before or since.
Any indication of a tendency to violence, or of associations with violent persons, would strongly favour revocation on public interest grounds, but the applicant has no history in that respect. She had at one time been involved in what the reviewing officer termed "tumultuous domestic relationships" which included allegations of her being assaulted by two of her ex-husbands, W S***** and D G****, and she was named as the person in need of protection in an AVO against the former. She now has no contact with either individual, however, and is in a stable and happy marriage. There is no suggestion that she herself has ever threatened or used violence. She has no record of psychiatric problems or of mental instability of any kind.
Although a person's interest in retaining a licence cannot outweigh the public interest in safety, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the safeguarding of the environment and the protection of primary industry. As the assistant manager of a grain company site, the applicant has a similar need for firearms to control feral animals and also to help in the humane management of her own cattle.
On the basis of all the evidence I conclude that it would not be contrary to the public interest for the applicant to hold a firearms licence, and I so find. The decision under review should be set aside.