FVT v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-02-09

Gad & Co Lawyers (Applicant) McCullough Robertson (Respondent) File Number(s): 2022/00217132 Publication restriction: Paragraphs 28, 57, 58: not for publication pursuant to s 64(c) and 64(d) of the Civil and Administrative Tribunal Act 2013

The publication or broadcast of the name of the applicant, his former place of work and his business name is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

FVT (the Applicant) first obtained a Category AB firearms licence under the Firearms Act 1996 (the Act) in 2012. On 4 June 2021 the NSW Police Force revoked the Applicant's licence on the basis of "serious concerns" regarding his suitability to hold the licence, pursuant to ss 24(2)(d), 24(2)(c) of the Act and Clause 20 of the Firearms Regulation 2017 (the Regulation). Those concerns were expressed to be threefold: the Applicant's association with individuals with a serious criminal history, that in 2016 the Applicant had some firearms stolen, and on the basis of a police report that he self-harmed when angry.
On 28 July 2021 the Applicant sought internal review of the decision to revoke his licence. The Applicant was not notified of the outcome within 21 days, so an internal review was deemed finalised on 18 August 2021 pursuant to s 53(9) of the Administrative Decisions Review Act 1997 (ADR Act). Despite this, on 24 June 2022 a delegate of the Commissioner of Police, NSW Police Force (the Respondent) conducted an internal review and affirmed the decision to revoke the Applicant's licence (the reviewable decision) on the basis that it was not in the public interest for the Applicant to hold a firearms licence, pursuant to s24(2)(d) of the Act and Clause 20 of the Regulations. This was said to be because of the Applicant's failure to abide by the licence conditions, his adverse traffic history, risk of domestic violence and mental health concerns.
On 25 July 2022 the Applicant sought review of the reviewable decision in this Tribunal. The proceedings were subject to an interlocutory hearing on 23 November 2022 before Senior Member Little in relation to the Respondent's application for confidentiality orders under the Civil and Administrative Tribunal Act 2013 (CAT Act). Those orders were granted and were continued during the hearing of the substantive proceedings before me on 9 February 2023 with respect to a confidential hearing that was held in the absence of the Applicant, and confidentiality orders made over the transcript of that confidential hearing and the evidence and submissions referred to and relied upon by the Respondent in that confidential hearing.
The Respondent submitted that the revocation of the Applicant's firearms licence was and is the correct and preferable decision because: 1. the Commissioner is of the opinion, and the Tribunal should be of the same opinion, that the Applicant is no longer a fit and proper person to hold a licence pursuant to s 24(2)(c) of the Act; 2. the Commissioner is not satisfied, and the Tribunal should not be satisfied, that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace, given: 1. evidence that the Applicant has caused self-inflicted injuries, pursuant to ss 24(2)(a), 11(3)(a) and 11(4)(b) of the Act; and 2. the Applicant's intemperate habits, pursuant to ss 24(2)(a), 11(3)(a) and 11(4)(c) of the Act.; 1. the Commissioner is satisfied, and the Tribunal should also be satisfied, that it is not in the public interest for the Applicant to continue to hold a firearms licence, pursuant to s 24(2)(d) of the Act and cl 20 of the Regulations.

Legal Principles

The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and … (2) The objects of this Act are as follows: … (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, …
The power to grant an application for a firearms licence under s 11 of the Act is "tightly constrained" and significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7, [117].
Section 11(3) of the Act provides: (3) A licence must not be issued unless-- (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
Section 24(2) of the Act states: (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 Regulations 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.

Fit and proper person

The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the Applicant was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper "cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. "
In the same case, Mason CJ stated at [63] that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper ": "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.
The Applicant's fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.
In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. "22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace."

Public Interest

The expression "public interest" is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "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."
The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, it was stated at 681: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.
Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].
In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, Senior Member Scahill noted at [76] that "the Applicant's traffic history shows a disregard for public safety and his own safety as he repeated traffic offences". The Senior Member determined at [81] that: The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety.
Where there has been or is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Aubrey v Commissioner of Police [2005] NSWADT 266 at [21]. The licensing regime is also concerned with "making decisions that are consistent with a need to reduce any risks to a minimum": Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

The Evidence

The Respondent relied on event reports concerning the Applicant and his traffic record as contained in the s 58 documents and Supplementary s 58 documents. As noted above, a confidential hearing was held during which the Respondent relied on additional evidence and submissions over which the Tribunal made additional confidentiality orders. Both the Applicant and Respondent's legal representatives provided the Tribunal with written submissions and made detailed oral submissions at hearing.
The Respondent relied on evidence of the following incidents contained in COPS event reports: 1. On 28 May 2011, the Applicant was stopped by police and searched. The police strongly believed that the Applicant and his friends had been illegally hunting and trespassing. This belief was supported by a report received on 2 June 2011 from a property owner that they had caught the Applicant and others trespassing and illegally hunting on two occasions between 21 May 2011 and 28 May 2011. 2. On 8 July 2011 the police were informed by a confidential source of two vehicles and a group of people, including the Applicant, trespassing and illegally hunting. Police attended the location and spoke to the group, observing several hunting dogs and dead pigs, including a hunting dog which had a fresh wound to its upper lip, likely to have been caused by a pig. Police warned the group in relation to illegal hunting and hunting by the road. A subsequent call to police on 9 July 2011 reported the vehicles had remained in the area, resulting in police forming the view that the group had provided false information to police about their intention to move on. 3. On 16 July 2011 the Police spoke to the Applicant, who made admissions to hunting illegally that day and the night before. The Applicant received an Infringement Notice for the offence of "Hunt game animal on private/public land without licence" under the Game and Feral Animal Control Act 2002 (NSW), and was fined $500. 4. On 10 August 2011 the Applicant was stopped for a Random Breath Testing (RBT). Police conducted a search of the vehicle and located two empty blister packs of a prescription medication called Capadex in the driver's door side pocket, bolt cutters, numerous screwdrivers and pliers hidden under and behind the seat, a rusty set of hand shears that, in the closed position, were identical to a large carving knife, and a large knife scabbard installed and hidden behind the rear passenger seat, on the back wall of the cabin. When questioned by police the Applicant indicated the medication was for his father's back pain, the bolt cutters were for "cutting fence wire that might tangle on wheels" and the rusty hand shears were used to "cut [his] hair", although he subsequently said he was being a "smart arse" and that he had never used them to cut his hair. When police questioned the Applicant about the large knife scabbard installed and hidden behind the rear passenger seat, the Applicant agreed that it was installed in a hiding place and could hold knifes of a substantial size. 5. On 7 July 2012, police stopped the Applicant's vehicle while he was driving along Neeld Street in West Wyalong, as police observed a number of hunting dogs in cages on the utility tray. When police stopped the vehicle, they observed a dead hare on the vehicle's utility tray. Initially the Applicant lied to police about having permission from a landowner to hunt on his property, but then admitted he had lied to police, and that he had been using their dogs to hunt the hare located on the road near the Hiawatha State Forest. Police inspection of the dogs revealed the Applicant's dog had a muscle-tissue depth wound on its right upper leg which showed evidence of extensive bleeding, causing the dog to be developing shock. The Applicant informed police that the dog suffered the injury when he was coursing a rabbit and running into a barb wire fence and that, since that injury, he had not done anything to treat the dog. Police subsequently seized the injured dog and took it to the Shire Pound for veterinarian treatment. The veterinary surgeon who treated Major, Dr Geoff Boals, opined that Major's injury was most likely caused by a pig and not barbed wire. The Applicant was subsequently issued an infringement notice for failing to prevent an act of cruelty under the Prevention of Cruelty to Animals Act 1979 (NSW) and a written direction under section 24N of the Prevention to Cruelty to Animals Act 1979 (NSW). 6. On 24 July 2016, the Applicant, his girlfriend and another individual were involved in a physical altercation with a couple that resulted in the Applicant being charged on 5 September 2016 with common assault contrary to section 61 of the Crimes Act 1900 (NSW), assault occasioning actual bodily harm while in company contrary to section 59(2) of the Crimes Act 1900 (NSW), and two counts of stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). As a result of these charges the Applicant's firearms licence was suspended on 12 September 2016. On 28 April 2017, the charges were withdrawn in the West Wyalong Local Court and the Applicant's firearms licence was subsequently reinstated. 7. On 8 October 2016, the Applicant's sister reported a break and enter at the Applicant's premises and the theft of his three firearms. At that time, police had been intending to serve a Notice of Suspension of the Applicant's licence and seize his firearms. Police subsequently identified that thieves had accessed the property through an unlocked laundry window, found keys to the Applicant's gun safe in the kitchen and removed his firearms. The thieves were subsequently apprehended, and two of the Applicant's firearms returned to him. 8. On 26 January 2017, police attended the residence of the Applicant's partner in relation to a domestic incident. Police observed the Applicant sitting on the front step holding a cloth to his forehead. The Applicant's partner informed police that the Applicant's injury was self-inflicted and that he "always bangs his head when he gets angry", but that the Applicant had not made any threats towards her. 9. On 29 November 2018, the Applicant and his father were involved in a verbal argument with the Applicant's neighbour's boyfriend, in relation to dogs constantly barking. On 30 November 2018, the Applicant's father attended the Applicant's residence at the same time that the neighbour's boyfriend arrived at the neighbour's house. The Applicant's father and the neighbour's boyfriend became involved in another verbal argument, which escalated into a physical altercation. During the altercation, both the Applicant's father and the neighbour's boyfriend were alleged to have made threats relating to firearms and knives. 10. On 16 June 2020, police received a report that the Applicant was riding a trail bike with a young child and no helmet. Police responded and observed the Applicant pushing a pee-wee 50 cycle with his 18-month old child seated on the cycle (which was not running). Police spoke to the Applicant about the report and the requirement to wear a helmet when riding. 11. In or around September 2020, the Applicant's aunt sold a car that had been given to her by her mother. The sale of the car caused tension in the family. On 18 November 2020, the Applicant's aunt received a message from the Applicant's Facebook messenger in relation to the sale of the car, including words to the effect of "when U see the lot of you at her funeral I am gunna bash the fuck out of your man smack the black off your fat ass and smash your fucking car. I suggest u call my mother and work out giving her money back [aunt's name] or I know where u live and I promise I am bringing trouble to your house this weekend if it is not solved" and "Time is precious and if you think I'm joking you obviously don't know me well". The Applicant's aunt received several missed calls from the Applicant's phone, and continued to receive messages while she attended the police station to report the incident, including at 8.33pm: "literally you have until this weekend before war gets brought to your family's house, do u want that" and "Hope your ready"; and at 8.45pm, "For your kids safety you should realy think about sorting this out while I am giving you a chance [aunt's name]" and "Until its solved, you have every right to be scared and lock your house and be very careful I know where you all live. Kieth's parents also". Due to the number of phone calls and messages, police then used the Applicant's aunt's phone to call the Applicant. Police introduced themselves and confirmed that they were speaking to the Applicant. Police informed the Applicant of the allegations to which he responded: "until my family gets the car or money back, time's precious". The Applicant terminated the phone call and shortly after the Facebook messages were deleted. As a result of this incident, police applied for and obtained an apprehended domestic violence order (ADVO) against the Applicant for the protection of the Applicant's aunt. On 29 November 2020, police attended the Applicant's residence. The Applicant said that he did not send the messages and that it was his partner who sent the messages from the Applicant's phone. Police subsequently served the provisional ADVO on the Applicant, and handed him a notice of suspension and seized his firearms. On 4 December 2020, the Applicant attended Nowra Local Court in relation to the provisional ADVO and provided a statement signed by his partner admitting to using the Applicant's Facebook account as well as a statement made by his sister indicating that she had seen his partner using the Applicant's Facebook account, and that the Applicant and his partner had an argument when the Applicant had realised that his partner was using his Facebook account to message his aunt. As a result, the matter was adjourned for one week, and the ADVO was subsequently withdrawn.
[NOT FOR PUBLICATION]
At the hearing on 9 February 2023 the Applicant was cross examined on his affidavit sworn 8 December 2022. In addition to his affidavit and oral evidence, the Applicant relied on evidence of his finances and the material provided to the Respondent for the purposes of its internal review, including two character references and a letter from his treating GP confirming that she had no knowledge of or any clinical concerns regarding the Applicant's mental health.
The Applicant gave evidence that he had trained as a butcher at the an Abattoir where he had come into contact with "colourful" persons. Towards the start of Covid he had withdrawn some of his superannuation and used it to start a mobile butchery business, which serviced the Nowra region. His clients included livestock owners, schools, hobby farms in the area and he also had a partnership with a university. His father assisted him with the business. He was expanding the business as opportunity arose, including investing in a cool trailer, fitted out precisely for butchery, which he purchased with the assistance of a client who loaned him $10,000 to be paid off through services. He claimed to be the only source of freshly slaughtered animals in the area.
His primary reason for seeking a firearms licence was to grow his business as a mobile butcher by offering the full range of services that are expected of a mobile butcher, including being able to "slaughter and process animals that are either injured, distressed or otherwise too dangerous to approach with a bolt gun". He explained that hobby farms often didn't have holding facilities to properly restrain animals for slaughter, which can lead to injury if a firearm is not used. The animal would become more distressed without a holding facility and the slaughter would be unprofessional. He stated that 50% of his work involved injured animals.
Without the use of a firearm to euthanise animals, he relied on a bolt device which did not require a licence. The bolt device, which he obtained off ebay, could render an animal unconscious. They were common at the abattoir. He said that most large landowners had their own firearms, and they occasionally could assist in killing animals, although this was uncommon. He believed that farmers most often had firearms for the genuine reason of "hunting/shooting" so they couldn't euthanise animals, and disagreed that the majority of farmers would have had as a genuine reason "vermin control".
He currently couldn't accept jobs involving the slaughter of injured, distressed or otherwise dangerous animals, or doing so would not "make commercial sense" because he would have to engage or source a second person to put down the injured/dangerous animal if the client is not able to do so themselves and a bolt gun cannot be used. At a minimum, this work would require a licence for a .22 magnum rimfire rifle to put down cows, calves, pigs and rams, and a .30 calibre centrefire rifle for bulls, camels and (on a rare occasion) horses.
Additionally, he wanted a target shooting licence so that he could do target shooting: … to make sure my firearms were fitted and sighted correctly for my work…Particularly when a hobby farmer does not have a facility to restrict an animal, I may have to dispatch the animal from between 20-50 metres and need to have the rifle properly sighted for such shooting.
He also wanted to engage in recreational hunting as he had previously enjoyed doing so and wanted to teach his son hunting skills when he was older: I would particularly like to teach my son hunting skills when he is older. I was taught traditional hunting by my uncles from my mother side (the aboriginal side of my family). I would hope that I could pass on those traditional (and modern) hunting skills to my son one day. I likewise hope that the traditional knowledge does not die out from our community.
In response to his traffic record he stated in his affidavit: I concede that my driving record is unflattering. Living and working in the country, I have to do a lot of driving of significant distances. I drive approximately 30,000 km per annum. Likewise, as part of my business as a mobile butcher, I have to drive long distances to and from worksites. Despite my driving, I do not recall ever losing my licence for a driving offence. I only recall (particularly when I was younger), my licence being suspended as I could not afford to pay the fines. However, when I saved up and paid the outstanding amounts, the suspensions would then be lifted. The last time my licence was suspended was in 2019. However, I saved up the money and paid the fine within 2 weeks of receiving the suspension notice. Working as a mobile butcher I have become more mindful of my driving speed and the importance of holding a driver's licence for my business. I have booked myself into a driving course to improve my driving knowledge. The course begins on 10 December 2022.
At hearing the Applicant stated that because he wasn't disqualified from driving, he was not eligible to do the course, and that it was more expensive to do the traffic offender course because he was not eligible.
In response to the incidents highlighted by the Respondent's s 58 material, the Applicant said: 1. In relation to the hunting / trespassing allegations, these incidents occurred when he was 17 or 18 years old. He claimed to be "inexperienced and still learning proper hunting and dog handling skills and rules". 2. He denied trespassing and hunting in May 2011 and in relation to the 6 June 2011 incident said that he had not entered the property, but had waited with the car while his group of friends got lost in the bush, so it took them a while to get back to the car, after which they moved on. He denied that the owner had twice told them not to return. 3. He claimed not to recall anyone having run off when the police arrived in relation to the July 2011 incident. They had been pig hunting near Narromine and he said "we were cooperative with police". He recalled receiving a warning. 4. In relation to the 30 August 2011 incident he said that he had been using his dad's vehicle when he was stopped for a breath test. The capodex, an opioid, was his father's, and his mum was sick with breast cancer at the time. He had his L's and was working at an abbatoir at the time. The bolt cutters and pliers found by police in the car were for freeing tyres. He said that 50% of cars have these because high tensile wires can catch the car. He explained the hand shears were for sheep shearing as he was working as a rouseabout on occasion. The knife was a work knife. He said the tools were not hidden, that you have to take knives home from the abattoir to resharpen them as this is your responsibility. 5. In relation to the 2012 incident it was put to the Applicant that he had lied and that he hadn't been given permission to hunt on the property. He said he wasn't pig hunting on this occasion and claimed to not have taken his injured dog to the vet because he didn't get the opportunity before the dog was seized. He said that the dog had jumped off the ute to chase a rabbit and got caught in the top and bottom strand of barbed wire, that there were no wild pigs within 2 hours of where they were, and that the dog was "not a pig dog - I had separate dogs for that". 6. The Applicant was 22 years old in 2016 when the incident at the Railway Hotel occurred and he was charged with common assault, assault occasioning actual bodily harm while in company, and two counts of stalk or intimidate intending to cause fear of physical or mental harm. There was an altercation between his partner and another woman, the details of which he couldn't remember. He recalled trying to remove his partner from the altercation and trying to separate her from the other woman. He denied kicking anyone but said that an "accidental push was possible", though not his intention. He "can't really remember". In relation to his criminal charges, the witnesses did not show up to court so the charges were withdrawn. He agreed that he had discussed the fight with his mother, who later posted about the altercation on Facebook. 7. As a result of the 2016 criminal charges, the Applicant's firearms licence was suspended on 12 September 2016. The firearms were unable to be seized because they had been stolen from his parents' residence. The Applicant had recently moved to Nowra and had not relocated his firearms safe, which was at his parents' residence in Springdale. He had also accidentally left his keys at his parents' residence. The house was broken into via the laundry window, with some suggestion that the laundry window had been unlocked. Police interviewed me about my suspicions of who may have been involved, and I provided the names of people who knew that I had firearms, who would have known that I had moved out of the area and that I had some suspicion that they may have done such a thing. About 2 or 3 weeks later, police stopped two of the people (who I provided names of) in an RBT and located the firearms in their car… They were both convicted for the unlawful possession of my firearms. Two of the three firearms were recovered. 1. In relation to the 26 January 2017 incident, the Applicant claimed that he had slipped in the kitchen on spilt liquid and hit his head when he was putting away dishes. In oral evidence he explained that he had hit his head on an open overhead cupboard, that it was not deliberate, and that he wasn't treated for any mental health issues. 2. In relation to the 2020 incident regarding the sale of his grandmother's car, he said that his former partner had sent a number of Facebook messages that were threatening to his aunt, and then deleted those messages from his phone. He was unaware of the messages until the police attended to serve an ADVO on him, and he hadn't allowed it. He admitted that he had told police "until my family gets the car or money back, time's precious" when they telephoned the Facebook account and he had answered. He said that he wasn't expecting the police to call him and wasn't sure at the time that it was, in fact, the police that had called him. 3. With respect to the allegations that he was associating with criminals between 2008 and 2014, he said in his affidavit that "I have never had any involvement with drug couriers or drug dealers". In his affidavit he said: I worked at an Abattoir from 2008 to 2014. The abattoir closed in 2019, however I was no longer living in the area by then. …Working at an abattoir in any capacity for a longer period, is highly uncomfortable, distressing and can have negative impacts on a person's psyche, particularly if one works on the kill floor. I worked for a relatively short period on the kill floor and then after I predominantly worked on the boning floor. I know that a number of my former co-workers who regularly worked on the kill floor abused alcohol and drugs. Knowing what the work entailed, I think that usage was more about removing themselves from the grim nature of the work. I had also heard that some co-workers were involved in the supply of drugs to other co-workers. I later heard that some of those former co-workers became involved in petty crimes after the abattoir closed. However, I only heard that anecdotally from friends and family who are still in the Temora area. After I left the abattoir and moved to Nowra, I basically cut all ties with my former co-workers. The one former co-worker I recall getting in contact with was James [XXXX]. He worked in a separate part of the abattoir, but was working there the whole time that I was also there. In 2020 I came across a news article on Facebook about James saying that he was a "bikie" and that he had been granted "a compassionate release from gaol due to bowel cancer". I found his account through Instagram and briefly chatted with him, asking how he was going and wished him the best with his diagnosis. I do not recall the exact contents of the messages however I have not remained in contact with him after that. I do not know anything further about what has happened with James or his cancer treatment.
The Applicant stated in oral evidence that he didn't know if cannabis or other drugs were being dealt at an abattoir and said that: I wasn't involved in the drugs. They needed them to work. I wasn't interested in finding out… I haven't taken illegal drugs then or since. I smoke cigarettes, that's my worst fault.
The Applicant said that he had a former family friend and neighbour from Wellington, with whom he had kept in touch sporadically. He had visited him at Nowra gaol at the request of his friend's mother in 2018. Other than the two friends he gave evidence about, he did not know anyone with "serious criminal histories" and he denied checking in on these two people constituted "associating" with them, stating that his "limited contact with them was on compassionate grounds".
The Applicant said that: I have complied with police directions and requests even if they appeared to be unfair or unwarranted. … I am part Aboriginal. I am the darker of my siblings (my brother has blond hair and light skin). I believe my appearance may have played a part in the poorer treatment that I have received from the authorities and the community in Temora. My younger brother did not receive anywhere near as much poor treatment in Temora.
He explained further that there were 200 to 300 indigenous people in the area with a total population of about 7000, and that his skin colour meant he was treated differently to others, including being kicked off a bus for drinking water.

Consideration

The Applicant is Indigenous Australian and began working at an Abattoir at a young age. He started his own mobile butchery business in 2020. This business supports one of his genuine reasons for a firearms licence, on the basis that he is occasionally required to slaughter animals which he then butchers for his business.
I accept the Applicant's evidence as summarized above at [30] to [36], which was uncontested by the Respondent's evidence. I accept that the Applicant has supported the genuine reasons he has identified for obtaining a firearms licence.
Other than the incident of 26 January 2017, there was no evidence supporting the Respondent's contention that the applicant had a history of self-inflicted injuries or self-harm. His treating GP confirmed that she had no knowledge of or any clinical concerns regarding the Applicant's mental health. In that context, and considering the explanation provided by the Applicant as detailed at [38(8)] above, I accept the Applicant's submission that there is no evidence before me that he suffers from any medical or psychological issues which impact his ability to obtain a firearms licence.
The Applicant does have an extensive traffic offence record. He was first issued with his provisional driver's licence on 27 June 2011. Since November 2011, the Applicant has committed a number of traffic offences including twice failing to display his P plate signs, eight speeding offences (including three times between November 2021 and April 2022) and driving whilst unlicensed.
As a result of these offences, the Applicant was issued with nine demerit point warning letters, and the Applicant's driver's licence was suspended on seven occasions. The Applicant submitted that these suspensions were the result of him not paying the fines associated with the driving offences, which I accept on the evidence before me of those suspensions.
The Applicant submitted that this driving record should be considered in the context of him driving extensively in rural areas for business, which I accept in the absence of any contradicting evidence. In relation to him driving while unlicensed, I also accept that this was on one occasion following the recent expiration of his licence, which was renewed immediately following.
Whilst there is nothing in the Applicant's traffic record of particular significance, it does not imbue the Tribunal with a great sense of confidence in his compliance with regulatory regimes involving public safety. Although I am unsure whether the Applicant has, in fact, undertaken any driving safety courses as anticipated in his affidavit, I do not consider the completion of such a course particularly relevant to his firearms application.
Of more concern is the Applicant's criminal history. Although the Applicant does not have any recorded criminal convictions or established ADVOs, as discussed above at [21], the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed, in determining whether the issue of a licence is contrary to the public interest.
Some of the unlawful activity involves illegal hunting, with associated trespassing and entering rural properties without permission, and conduct amounting to animal cruelty. Despite admitting to engaging in at least two instances of unlawfully hunting on a property without permission, the Applicant denies or otherwise minimizes his conduct. Considering all of the evidence before me, I think it more likely than not that the Applicant was engaging in the hunting and trespassing activities alleged by the Respondent, some of which resulted in animal cruelty. I agree with the Respondent that the Applicant consistently disregarded laws regarding trespass and hunting, despite being cautioned by police about the issue on multiple occasions. I therefore do not accept the Applicant's statement that he "…was inexperienced and still learning proper hunting and dog handling skills and rules".
The Respondent submitted that repeated disregard for laws regarding hunting is strong cause to suggest that the Applicant cannot be trusted to comply with laws regarding hunting with firearms in the future. In my view the passage of time since this conduct, in the absence of any other concerning unlawful activities, could ameliorate concerns that the public might have in granting the Applicant a firearms licence. Those concerns are not ameliorated, however, because the Applicant has continued to be brought to the attention of police in the meantime.
The Applicant's own evidence is that he has had limited contact with two individuals who have significant criminal histories. I accept that those associations are limited.
The Respondent submitted that the Applicant's involvement in the incident at the Railway Hotel on 24 July 2016, the reports of the Applicant self-harming on 26 January 2017, his involvement in the domestic incident on 30 November 2018 that involved "threats relating to firearms and knives", and his involvement in the 18 November 2020 incident demonstrated that the Tribunal cannot be satisfied that there is virtually no risk to public safety if the Applicant is to be granted a firearms licence.
The Applicant could not remember much of the detail put to him in relation to the incident of 24 July 2016. Based on the Statement of Facts and the Applicant's responses in cross examination, I find that the Applicant did get involved in an altercation between his partner and another woman which ended in physical violence. However, in relation to the incident of 30 November 2018, I do not accept that the evidence demonstrates the Applicant was "involved" in "threats relating to firearms and knives". The only evidence of such threats on that occasion is by the Applicant's father and his neighbour, not the Applicant himself.
In relation to the incident of 18 November 2020, I agree with the Respondent's submission that it was the Applicant, and not his partner, that sent the abusive messages to his aunt. This is because the threatening messages refer to "my mother" with reference to the Applicant's mother, not his partner's mother; the Applicant answered the Facebook messenger call when called by police at the time that the threatening messages were sent; and because the Applicant said to police during that call "until my family gets the car or money back, time's precious" which was consistent with the threatening Facebook messages. Although the Applicant and his sister's evidence contradicts that finding, I find it more likely that the Applicant was the perpetrator, not his partner.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
In Grant v Commissioner of Police [2020] NSWCATAD 158 (Grant), the Tribunal found the applicant in that matter to be a fit and proper person notwithstanding a history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. This was because the Tribunal accepted Mr Grant's evidence that he acted in self-defence in the fight, that he has never consumed illicit drugs, and that he never intended to trespass. Mr Grant made full admissions and took full responsibility for his actions. He made a full admission, early guilty plea and was remorseful in relation to the offence of cultivating cannabis. Informing that evidence were 7 character references which provided "general support for the propositions that Mr Grant is trustworthy and uses firearms safely", and the evidence that Mr Grant held a firearms licence for about ten years without incident.
While the criminal history and unlawful conduct in Grant seems analogous to the Applicant's history in these proceedings, the Tribunal's findings are not. In contrast to Grant, the Applicant in these proceedings has not been so forthright in making admissions or taking responsibility, and the factual circumstances have resulted in this Tribunal finding that the Applicant had consistently disregarded laws regarding trespass and hunting, despite being cautioned by police about the issue on multiple occasions.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. The discretion exercised by the Tribunal in each decision rests on its particular circumstances. As stated in Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272 (Romanos) at [47]: Licence holders are not required to have led entirely exemplary lives, and on all the evidence I find that there is no realistic prospect that he would present any risk to public safety or the peace if his licence were reissued. I therefore conclude that he is a fit and proper person to hold a firearms licence.
The Applicant submitted that, following Petricevic v Commissioner of Police, NSW Police Force [2022] NSWCATAD 24 (Petricevic), Romanos, and Hailes v Commissioner of Police [2022] NSWCATAD 37 (Hailes), if there is a considerable passage of time in which earlier offending conduct is no longer committed, then that period of time should be taken into consideration in the application of the fit and proper person test. The Applicants in Petricevic, Romanos, Hailes, and Grant each provided the Tribunal with a number of character references on which the Tribunal placed considerable weight in determining their individual fitness and propriety.
In relation to his history of trespassing and illegal hunting the Applicant stated, "I have matured greatly since then and I am far more mindful of rules and regulations". However, there is no substantial evidence of reformation of character in the passage of time since that conduct. In these proceedings, the Applicant has provided two character references, both from referees who have known the Applicant only in the last 1 to 2 years. Neither of them indicates any specific knowledge of the Applicant's history or past interactions with the police or concerns regarding unlawful conduct. In line with authority in Loye v Director General, Department of Transport [2000] NSWADT 145 at [42] and [44], Sawires v Commissioner of Police [2010] NSWADT 4 at paragraph [49] - [53] and Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40], in the circumstances I do not place any weight on their opinion as to the Applicant's fitness and propriety.
I accept that the Applicant has genuine reasons for a Category AB firearms licence and consider especially that not having a licence will negatively impact his ability to grow his mobile butchery business. I accept that through his mobile butchery business, the Applicant provides some public benefit to the community and the general public in providing an essential service in the Nowra region for farmers. I also take into consideration that he has held a firearm's licence since 2012 and has not previously had any issues with firearms regulatory compliance, excepting the theft of his firearms in 2016. I place reasonable weight on these matters.
The Act makes it clear that firearms ownership is a privilege, not a right, and that individual interest is subordinate to public safety. The question of whether an individual is a fit and proper person must be considered in the context of what a firearms licence allows that individual to do - to own, use, and store dangerous weapons. The Applicant's threatening conduct towards members of the public is relevant in that context, as is his repeated trespassing and illegal hunting, instances of animal cruelty, and the conduct outlined in the confidential evidence. I give that conduct significant weight.
In those circumstances, and in the absence of substantial evidence of character reformation since those incidents, I am not satisfied that the Applicant is a fit and proper person for the purposes of s 24(2)(a), 11(3)(a) and 24(2)(c) of the Act.
I also agree with the Respondent that pursuant to s 24(2)(d) of the Act and cl 20 of the Regulations it is not in the public interest for the Applicant to hold a firearms licence, given the concerns reported to police about the Applicant's conduct.
The correct and preferable decision is therefore for the Tribunal to affirm the Respondent's decision to revoke the Applicant's firearms licence.

Orders 1. The Respondent's decision to revoke the Applicant's firearms licence is affirmed. 2. The confidentiality orders made 23 November 2022 and 9 February 2023 are continued. 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

Amendments 01 June 2023 - Amendments made pursuant to s64(1)(a) order made 31 May 2023. 02 June 2023 - Further anonymisation's made in paragraph 39. 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 June 2023

(NSW), Prevention of Cruelty to Animals Act 1979(NSW)

Prevention to Cruelty to Animals Act 1979(NSW)

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