This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Commissioner). The delegate determined to revoke the Applicant's category ABCH firearm licence.
[2]
Background
Between 2000 (while the Applicant had a provisional driver's licence) and 2008, the Applicant committed six traffic offences as follows:
1. 8 August 2000, exceeding the speed limit by not more than 15 km an hour;
2. 17 August 2001, negligent driving
3. 3 November 2001, exceeding the speed limit by more than 15 km but not more than 30 km an hour;
On 28 November 2001, the Applicant's licence was suspended until 2 April 2002 because of the above offences. The traffic offences continued between 2002 to 2007 as follows:
1. 16 June 2002, disobeying traffic lights;
2. 19 March 2004, burnout; and
3. 16 June 2007, driving using handheld mobile phone.
On 10 September 2009, the police were informed by an alleged victim (Alleged Victim A) of an assault committed by the Applicant on 9 September 2009. As recorded in the police report, Alleged Victim A alleged that the Applicant said "They look big" before grabbing the alleged victim's right breast.
Between 2010 to 2013, the Applicant committed more traffic offences as follows:
1. 16 December 2010, exceeding the speed limit by not more than 10 km;
2. 23 April 2011, exceeding the speed limit by more than 15 km but not more than 30 km an hour;
3. 8 March 2012, driving using handheld mobile phone; and
4. 14 August 2013, driving using handheld mobile phone.
From 2013, the Applicant has held a firearms licence albeit the category changed over time.
For the period from 2013 to 2021, the Applicant was accused of further sexual assaults of two more alleged victims aged 63 years old and 61 years old (Alleged Victim B and Alleged Victim C) who reported ongoing sexual abuse by the Applicant who was their manager. Alleged Victim B and Alleged Victim C reported the alleged offences on 26 January 2021.
Between 2015 to 2018, the Applicant committed two more traffic offences continued as follows:
1. 23 January 2015, disobeying traffic lights; and
2. 2 November 2018, exceeding the speed limit by not more than 10 km whilst driving a heavy vehicle.
On 16 October 2018, the Applicant was granted a ABCH firearms licence. The reason given for the Applicant's need for a firearm was his employment on a primary production facility upon which he, then, resided and to kill foxes and wild birds that posed threats to the livestock. The primary production facility was a business belonging to and operated by his father and is the Applicant's safe storage address. The Applicant has not resided at this address from at least 1 July 2023 as recorded in the District Court of NSW Court Order Notice.
As noted above, on 26 January 2021, Alleged Victim B and C made a report to the police alleging that they had been sexually assaulted by the Applicant which occurred almost daily over a seven-year period. According to the police report, the Applicant would:
1. pin them down and fondle their breasts under their shirts or touching heir vaginas on the outside of their clothing;
2. walk behind them and undo their bra;
3. place them in a headlock and force their heads into his crotch;
4. follow them into the women's bathroom and expose himself to them;
5. masturbate in front of them or show them videos of him masturbating on his phone.
The police report states:
Due to the age of the victims they continued to work at the facility fearing that they were unable to obtain a job anywhere else.
On 18 May 2022, the Applicant was charged with 33 offences with 10 of the offences being withdrawn on 5 April 2023. The Applicant was charged with the following offences:
1. Assault with act of indecency;
2. Commit act of indecency with person 16 years or over;
3. Carry out sexual act with another without consent;
4. Common assault;
5. Aggravated indecent assault - victim under authority of offender;
6. Aggravated - sexual touch another person;
7. Aggravated indecency - victim 16 or over & under authority of offender; and
8. Aggravated - carry out sexual act with another.
The Applicant's firearms licence was revoked on 21 April 2023 on the grounds that the Applicant had been charged with prescribed offences of a sexual nature (the Revocation Decision).
The Revocation Decision determined that it would not be in the public interest for the Applicant to hold a firearms licence on the basis of the charges, relying on section 24(2)(d) of the Act and Clause 20 of the Firearms Regulation 2017 (the Regulation) which permits the Respondent to revoke a firearms licence on the basis that it is not in the public interest for a licensee to continue to hold the licence.
As submitted by the Respondent:
The Revocation Decision considered the overriding need to consider public safety and the requirement that licensees act responsibly and in accordance with the legislation. In considering public safety, significant weight was given to the incidents that led to the charges, which irrespective of the offence outcomes, raised serious concerns regarding the Applicant's suitability to be authorised to hold firearms. Public safety concerns not being solely limited to criminal convictions.
An Internal Review of the Revocation Decision was conducted on 22 June 2023. The Revocation Decision was affirmed.
The Applicant is due to appear before the Newcastle District Court on 24 June 2024 in relation to the 23 charges.
On 7 August 2023, the Respondent filed an application for the adjournment of these proceedings pending the outcome of the outstanding criminal charges. That application was dismissed on 4 September 2023.
On 10 October 2023, the Applicant's firearms' licence expired.
On 19 October 2023, the Respondent filed an application seeking dismissal of the proceedings or in the alternative that the proceedings be adjourned pending the outcome of the criminal proceedings. That application was dismissed on 14 November 2023 and the Applicant's application proceeded to final hearing on 17 November 2023.
Despite having made application for an adjournment on two earlier occasions, the Respondent maintained the submission that the proceedings ought to be dismissed or adjourned including the contention that the proceedings have no utility because the licence had expired and could not be reinstated. For the reasons given by this Tribunal on 14 November 2023, that application and submission is again rejected.
[3]
The Law
The underlying principles of the Act are outlined in section 3. Relevantly they are:
1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
2. to improve public safety:
3. by imposing strict controls on the possession and use of firearms, and
4. by promoting the safe and responsible storage and use of firearms.
Sub-section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Sub-section 24(2)(b)(ii) provides that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulation, whether or not the licensee has been convicted of an offence for the contravention. Sub-section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the Regulations. Clause 20 of the Regulation states 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.
[4]
Tribunal review
The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the Administrative Decisions Review Act (NSW) 1997 (ADR Act). Pursuant to s63 of the 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 not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
[5]
The Applicant's Traffic History
The Respondent refers to the applicant's history of continual and significant traffic infringements between the years 2000 to 2018. A traffic record report was provided with the documents which were produced by the respondent pursuant to s58 of the ADR Act which identified the offences described above.
The Respondent made submissions that these matters, over a significant period of time, demonstrate a continued disregard for the law and inability to comply with laws designed for public safety.
The Applicant made submissions that the driving history is irrelevant to the decision to revoke as there is no correlation between the Applicant's driving history and concerns regarding his ownership of firearms. They make submissions that if the record is to be considered that the Applicant has "accumulated just two traffic offences in the last decade" and "it could hardly be said that the record reflects poorly on the Applicant".
[6]
The charges against the Applicant of sexual assault
The Respondent alleges that the applicant engaged in acts of violence. They refer to charges in relation to a sexual assault which is said to have occurred over a seven-year period. The Applicant emphasised the seriousness of the charges by reference to the terms of potential imprisonment that range from two to seven years and if convicted, the Applicant's firearm licence would be automatically revoked pursuant to Regulation 5 of the Regulation with reference to s 11(5) of the Act. Fact sheets and police reports from the police in relation to the charges were before the Tribunal. The charges related to a report that was made to police by the Alleged Victims.
The Applicant has not put on any evidence expressly denying any of the allegations. Rather, the Applicant has sought to convince the Tribunal that little weight should be given to the fact sheets and police reports or otherwise, that the evidence is insufficient as a matter of proof. With respect to the allegations made by Alleged Victims B and C, the Applicant states by way of submission only:
While it is not obvious from the bundle, it is the case that the Applicant has entered pleas of not guilty to the allegations and the matters have been set down for trial.
In this respect, the Applicant refers to the "untested and untried allegations of sexual offending" which are only evident in what should be considered as third hand hearsay. The Applicant contends that the allegations are entirely unproven and while not irrelevant to the decision-making process, they are an unreliable basis to decide the application. Even if that was wrong, the Applicant contends that the alleged offending is entirely unrelated to the possession of firearms.
With respect to Alleged Victim A, the Applicant draws the Tribunal's attention to the fact that the Applicant was never charged with respect to the allegations and the fact that the report records some unknown person stating that the alleged victim "has a history of making stories up to get attention". In these circumstances, the Applicant submits that the allegation should be given no weight.
In reply, the Respondent emphasises the fact that the Applicant has not given any evidence in these proceedings and the Respondent does not rely upon any evidence of his own (apart from references to the section 58 bundle). This is in circumstances where it is usual for applicants to rely upon their own evidence as well as character references or other evidence going to character. The Respondent submits that in the premises, the Respondent's evidence as establishing the conduct the subject of the charges must be accepted.
[7]
No utility
As noted at paragraph 21, the Respondent maintained the submission that there was no utility in the application as the licence would have expired if it has not been revoked.
[8]
Genuine Reason
The Respondent made submission that the Tribunal cannot be satisfied that there remains a genuine reason for the Applicant to be issued with a firearms licence given his change of address as described at paragraph 9.
The Applicant contended that such reasons were not included in the Revocation Decision or the internal review and in any case, the change of address was insufficient to challenge the fact that the Applicant's reason was genuine.
[9]
Findings and Decision
The Tribunal rejects the submissions by the Applicant that the criminal matters alleged against him should be disregarded, not considered or not given any weight in deliberating on the issues because they are "untested" allegations.
While it is true that the some of those matters did not proceed in the criminal courts and in respect of other allegations, no conviction is presently recorded because they are awaiting trial - for the reasons below, those circumstances do not make the allegations of criminal conduct irrelevant. Nor do I find that the evidence in respect of these matters (being Crown Case Statement, COPS entries, Court Order Notices, Court Attendance Notices and Fact Sheets) is unpersuasive in the absence of any express denial of the allegations by the Applicant in these proceedings.
The findings above, in large part, are a product of a correct application of the standard of proof in this Tribunal. The decision of Principle Member Simon (known at the time of the decision as Senior Member Simon) in El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103 is a correct articulation of those principles.
In that decision, allegations were made as against the applicant that were not pursued in the criminal courts or no conviction was recorded. In that matter, statements were relied upon by various police officers however, the applicant also relied upon evidence in which he denied the allegations of sexual assault as well as oral evidence in which the applicant was cross-examined.
Principal Member Simon held (at [37] to [41]):
In these proceedings the Tribunal must makes its own decision on the material before it taking into consideration the objects and intentions of the Act where the overriding need is to ensure public safety. In the Court of Appeal case, Joseph v NSW Commissioner of Police [2017] NSWCA 31 (6 March 2017), Mr Joseph appealed an Appeal Panel decision affirming the Commissioners refusal to issue a firearm license. Mr Joseph had initially put before the Tribunal in the initial determination that fraud charges which had been bought against him were dismissed before trial were not relevant to the Tribunal's consideration as they had not been tested. The Tribunal initially agreed with those submission and made orders for the issuing of a license for a firearm. The matter was appealed by the Commissioner to the Appeal Panel who rejected those submissions, allowed the appeal and affirmed the decision of the Commissioner. Mr Joseph appealed to the Supreme Court of Appeal which found that that evidence established, at least on the balance of probabilities that Mr Joseph had engaged in pre-planned, fraudulent conduct. They confirmed that the Appeal Panel could consider the evidence relating to the fraud applying a lesser standard of proof than the criminal standard. The application for leave to Appeal was dismissed.
Specifically at para 60 of the decision it states:
There was no reason in principle why the Appeal Panel could not take into account matters indicating criminal conduct on Mr Joseph's part and do so after applying a lesser standard of proof than the criminal standard (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [32]- [33]).
Further, in the recent Supreme Court of Appeal matter of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (9 March 2017) it was stated at paras 126-127:
It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate "must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence". However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]- [40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]- [30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]- [122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted]
In those circumstances, his Honour's reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
While these decisions were made after this appeal was heard, they however reflect the position of the cases prior including Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 where it was stated at paras 32-33
The Authority submits, correctly, that the "general principle" stated by the Full Court and set out at [26] above is expressed too widely and does not follow from the constitutional constraint stated in the joint reasons in Lim on the adjudgment and punishment of criminal guilt under Commonwealth law. Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime[71]. Satisfaction in such a case is upon the balance of probability[72]. In Helton v Allen, Mr Helton's acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her[73].
More generally, and contrary to the "normal expectation" stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. The decisions of this Court in Attorney-General (Cth) v Alinta Ltd[74] and Albarran v Companies Auditors and Liquidators Disciplinary Board[75] accept so much[76]. There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant's use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.
Consequently, the Tribunal rejects the applicant's submissions that matters where no conviction has been recorded can't be considered or given any weight in the matter. [Emphasis added]
Likewise, I reject the Applicant's submissions that matters where no conviction has been recorded (either because no conviction was pursued, or the criminal proceedings have not yet been heard) cannot be considered or given any weight in the matter.
With respect to the Applicant's traffic offences, the Tribunal rejects the Applicant's submissions that the traffic offences cannot be a relevant consideration to the matter.
In Tannous v Commissioner of Police [2011] NSWADT 116 at [32] the Tribunal held that repeated breaches of traffic laws and regulations which like the regulation of firearms, are aimed at ensuring public safety, can be potentially relevant. The conduct in relation to traffic offences may indicate an inability to respect authority and observe legal regulations which are imposed for public safety. Such conduct may indicate a lack of responsibility when it comes to public safety. In that case the Tribunal ultimately found that it was not in the public interest for that applicant to hold a firearms licence. In arriving at the decision, the Tribunal regarded that the applicants repeated breach of traffic laws and regulations indicated a disregard for a regulatory scheme which is aimed at ensuring public safety. Such reasoning is consistent with the breadth of the Commissioner's discretion and the overriding object of public safety.
With respect to the Respondent's submission that the proceedings should be dismissed because they lacked utility, as stated above, I reject that submission for the reasons given on 14 November 2023 in dismissing the Respondent's interlocutory application for dismissal or a stay.
As for the Respondent's contentions that the Tribunal should find that the evidence supports the finding that the Applicant's former genuine reason for a firearms (being primary production) is no longer supported, I also reject that submission. I accept that while the change of the Applicant's residential address raises some doubts as to whether the Applicant continues to be authorised to shoot vermin and other pests on the property upon which his parents' conduct their primary production business, that change of address is insufficient to find that the genuine reason of the Applicant to hold a firearms licence is now redundant. Irrespective of his address, there is no evidence to suggest that the Applicant does not have access to the property (being his safe storage address) given that his father is the owner and operator of the business that is conducted at that address according to the Crown Case Statement.
Considering all relevant considerations, the Tribunal finds that it is not in the public interest for the applicant to continue to hold a firearms licence.
The Tribunal makes the following findings:
1. The applicant has had a history of continual and significant traffic infringements between the years 2000 to late 2018. The applicant submitted that the last matter was in 2018 but no evidence was relied upon to substantiate that the Applicant's personal circumstances had changed. Despite the last offence being committed in late 2018, his driving history demonstrates he has previously had gaps of years (for example an offence in April 2015 followed by an offence in November 2018) without infringements and then an infringement to follow and that he was only re-issued an unrestricted licence on 20 July 2021. Some of the offences are repeated such as driving with a mobile and speeding. The Tribunal finds that the applicant's traffic history does demonstrate an inability to follow regulations which are imposed for public safety,
2. In relation to the sexual assault allegations, the Respondent relies upon the section 58 Bundle as well as the documents marked Annexure A to D attached to the Respondent's written submissions. The Applicant had the opportunity to provide a statement or rely upon evidence to deny the allegations. The evidence of the Respondent remains unchallenged. As such, the Applicant has not addressed the conduct which gave rise to the criminal charges at all having not relied upon any evidence either by way of a statement or evidence from others.
3. While it is uncontroversial that for the purposes of criminal consideration, the Applicant is not obliged to comment, my task is to consider his conduct on the balance of probabilities. The only evidence I have before me in relation to the alleged sexual assault allegations is that provided by the police, notably the complaint of the alleged victims contained in the police reports. It is not necessary for me to determine if the Applicant was, even on the balance of probabilities "guilty" of the charges against him; I am to consider the conduct that gave rise to those charges. I do not need to find the charges proven on the civil standard, only that the conduct complained of was proved to the civil standard. The only evidence I had before me was the evidence relied upon by the police; there was no contradictory evidence by the Applicant. I find that, on the balance of probabilities, that the conduct complained of was true. This conclusion being consistent with the reasoning in EMB v Commissioner of Police [2020] NSWCATAD 255 at [29] which was upheld on appeal in Commissioner of Police v EMB [2022] NSWCATAP 85. Irrespective of the fact that the conduct relied upon is not conduct involving firearms, I am satisfied that the Applicant has showed a prolonged disregard for the safety of others and a lack of judgement and willingness to act consistently with the law and the protections afforded to the community which raise serious concerns with regard to his suitability to be authorised to hold firearms and I consider that it would not be in the public interest for the Applicant to remain authorised for firearms.
The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasis that strict controls on the possession and use of firearms are imposed for this reason. The Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision. The orders are made accordingly.
[10]
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: 12 January 2024