Azzopardi v Commissioner of Police, New South Wales Police Force [2013] NSWADT 205
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Source
Original judgment source is linked above.
Catchwords
Azzopardi v Commissioner of Police, New South Wales Police Force [2013] NSWADT 205Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Sciberra v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Judgment (16 paragraphs)
[1]
issioner of Police, New South Wales Police Service [2006] NSWADT 149;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110;
White v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 336.
Texts Cited: Nil Cited
Category: Principal judgment
Parties: GGW (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Applicant in person
Solicitors:
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2023/00004292
Publication restriction: (1) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3 is prohibited
[2]
(2) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
[3]
(3) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[4]
REASONS FOR DECISION
The applicant GGW applied to this tribunal on 3 January 2023 for review of a decision by the respondent Commissioner to refuse his application for a category AB firearms licence.
The applicant had applied for a category AB licence on 30 August 2020, which was refused or 12 October 2021 (exhibit R1, pp 36 - 37) on the ground of his domestic circumstances, namely that a close family member of the applicant was affiliated with an outlaw motorcycle gang (OMCG), thereby creating a risk to public safety.
The applicant on 20 October 2021 applied for an internal review, which affirmed the refusal decision on 7 December 2022, chiefly on the ground that he had a criminal history that included robbery with actual violence and attempted breaking, entering and stealing. He had been sentenced to terms of 5½ years and 12 months imprisonment respectively for those offences. The reviewing officer pointed out that this tribunal's Appeal Panel had held that offences may have continuing relevance even if a significant period of time has elapsed. Also of concern was his links with his brother (an OMCG member).
The applicant applied for tribunal review or 3 January 2023 and the matter came on for hearing on 7 June 2023. The applicant participated by AVL link.
[5]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license 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)(a) states that a licence must not be issued if the Commissioner (or on review the tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: the applicant's way of living or domestic circumstances…."
Section 11(7) states that "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, including having regard to his domestic circumstances, and whether the issue of a licence to him would be contrary to the public interest.
[6]
The evidence
The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross-examination of the applicant. Pursuant to directions made by Little SM on 26 April 2023, a confidential hearing to receive confidential evidence was conducted at the conclusion of the open hearing.
[7]
GGW (Applicant)
The applicant on 5 June 2023 filed a detailed 13-page document with substantial annexures (exhibit A1). It was, however, in the nature of a submission rather than of a witness statement and therefore did not comply with Montgomery SM's directions of 15 February 2023. The result was that the applicant's own evidence had to be purely oral.
10 In evidence in chief, the applicant stated that he lives at **** ******** and is a full-time carer for his elderly mother. He also runs a charity. His criminal history was all in the last century and he had now been well-behaved for 24 years, following a complete change of attitude.
The applicant referred to event report E49213030, 13 December 2012 (exhibit R1, pp 12 - 14) which the respondent had described as "an extremely concerning incident" that occurred on 7 December 2012, when following a dispute with a neighbour over a property issue, the victim alleged that the applicant drove his vehicle in a fashion that caused it to narrowly miss his head, and when rebuked replied "You can all get f****ed, if I wanted to kill you I could have hit the lot of you and kill you all" (part exhibit R2, paras 50 - 53). The applicant said that in his Local Court case, the Magistrate found that the three persons behind the allegations were not credible. One of them, Warren ***** had admitted that they had "bluffed the police". He had made claims to the police that were not credible. The case had been about an assault on Warren *****, but instead it was the latter who had attacked him with a weapon and the Magistrate found GGW not guilty.
In event report E55857755 (exhibit R1, p 15), the applicant had been the victim and the neighbour, Warren ***** had been the person of interest and had been yelling general abuse at the applicant, with whom there had been several neighbour disputes over the years, though none of them were violent or threatening. The applicant stressed that the police had said that the incidents referred to were not violent, which was contrary to the respondent's position. No charges had been laid as a result.
Event E78824086, 4 October 2020 (exhibit R1, p 16) resulted from a complaint by a Mr D****, whose ex-wife had married the applicant, making him the stepfather of Mr D****'s children. Following the latter's refusing to give the children money during a drive to McDonald's, the applicant called him a "cheapskate" and "gutless wonder" and was yelling other abuse towards him across the car park. Mr D***, believing that the applicant's conduct constituted a breach of Family Court orders, complained to police (Const. Shields) who concluded that no offence had taken place, and no action was taken. The applicant commented that Mr D**** was upset because his wife had won a Family Court case against him. There had been no abuse on his part at all, and Const. Shields had said there had been no offence committed.
[8]
Applicant's submissions
In oral submissions the applicant said that he had completed firearms safety and storage qualifications. The police had said that none of the incidents referred to that involved him were violent or of threatening nature. No charges had been laid in respect of them, so they should not count. There was no evidence of aggression or threats on his part.
The question of fitness and propriety was to be judged as at the date of the hearing, and he had not committed any offences since December 1997. He had undertaken a number of courses in order to move away from his previous lifestyle. The conspiracy charges against him involved only two people, and not an OMCG or other organization.
His charity work attested to his fitness and propriety. His role in certifying the safety of unregistered motor vehicles was an example of his safety-consciousness.
He now does the right thing and has no desire to have any contact with his brother or an OMCG. In 1997 he had made stupid decisions and was remorseful about them. His brother has no access to his house and would therefore not be able to obtain a firearm from it. He had no interest in the biker lifestyle and knew he would have to keep his firearms safe. He would follow the legal requirements and was now a fit and proper person to have access to firearms. His wife had suffered from his licence refusal because a condition had been placed on her firearms licence. He would present no risk to public safety if a licence were issued to him.
Though he did not request it, I think it appropriate to treat his internal review request letter dated 20 October 2021 (exhibit R1, pp 39 - 41) as part of his submissions in this matter. It makes essentially the same points as his oral submissions, although it does give additional detail. It particularizes the 11 courses and other qualifications he has achieved over the past 19 years. He states that when he applied for his unregistered vehicle inspector licence in 2010, he had to prove that he was a fit and proper person to become an AUV (authorized unregistered vehicle) Inspector. He had to show that he was able to abide by the necessary rules and regulations to keep his licensing. Over the last 11 years he had achieved that and is still currently an authorized unregistered vehicle inspector. In that time he had received no complaints from RMS or any other government authority.
[9]
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 refusal of a licence or permit: s 75(1)(a). Although the internal review requested by the applicant has not been resolved, it is deemed to have been finalized by s 53(9)(b) of the ADR Act. 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.
[10]
References and other documents
The applicant also attached a number of certificates and similar documents, including a certificate in small business management from Mission Australia, TAFE certificates as a gas vehicle examiner and a light vehicle inspection examiner, an advanced diploma of ministry from Hillsong, certificates in healing, discipleship and Modular C participation from Ellel Ministries, a Parliamentary Community Recognition Statement and a certification from the Australian Charities and Not-for-Profits Commission for his charity.
There were also some character references. Pastor Grant Robertson wrote on 13 January 2023 that he had known the applicant since 2020 and he is an active member of their church, , as well as his local and surrounding community. He is a man who loves people, his church and his community. He and his wife run a charity in the community and have been doing so since 2020. He has especially helped those who fall through the gaps, whether in welfare, financial matters or through medical problems, by sourcing free groceries to struggling families and individuals. He is a caring, thoughtful and compassionate person who has placed others before himself. He is a hard-working man with good morals and ethics and shows no partiality to the rich or the poor.
Mrs C***** wrote that she has been a neighbour and friend of the the applicant's family since 1994. She and GGW's mother have attended the same churches over a long period. She has therefore been aware of GGW's criminal past and his Damascene conversion and evolution to being the fine upstanding man that he is today. She and the applicant attended the same church since 2006.
GGW attended Bible college and spent time working with a church in Ireland during that subsequent period. Over the past two years he and his wife started collecting food from Coles and distributing it to families in need. That quickly became a ministry to feeding over 200 families in their local area as well as supplying food for struggling farmers for their animals. They collect from numerous Coles, Woolworths and Aldi stores.
Over a year ago the applicant and his wife had asked her to sit on the board of their charity. It was a great honour to do so, knowing GGW's past and how he had turned that around, no doubt with divine help, to become the man who is invited to speak at Rotary meetings and known for his good works in their local community.
[11]
Evaluation
The applicant has some serious offences on his record, including robbery with actual violence in Queensland in 1999 and attempted breaking, entering and stealing in 1995, which resulted in custodial sentences of 5½ years and 12 months respectively. Between 1989 and 1999, he faced other charges, of drug offences, breaking and entering and possession of an unauthorized firearm, but none resulted in a finding of guilt. There have been no non-traffic offences since then and, as the applicant pointed out, his whole criminal history was in the last century. Nevertheless, it cannot be disregarded, as an appreciation of an applicant's entire history is necessary, not merely his recent conduct.
Next, there have been a number of incidents of domestic or quasi-domestic nature involving him. The most serious was the driveway incident on 7 December 2012 in which Warren **** alleged threatening behaviour. The report suggests that the attending police were not impressed by Warren's allegations and states that they urged him to allow the dispute to take its legal course and that he should not involve himself in a matter that did not concern him.
As was noted above, the applicant's long-standing neighbour, Mrs C****, in her detailed letter on the subject stated categorically that Warren was a manipulative and overbearing personality with a propensity for bullying women, who caused internecine disharmony in the neighbourhood which persisted until he moved away. She emphasized that he was an unreliable witness. There do appear to have been some Local Court proceedings arising out of the episode, though it is not clear when or how they were instituted. The applicant's unchallenged evidence, however, was that the Local Court found that Warren and his other witnesses were unreliable. At all events, the charges were dismissed.
The other incidents did not result in any proceedings or police action, and one of them, the minor traffic collision, was found on video and photographic evidence to be unfounded. The incidents do show, however, that in stressful situations, as recently as 2020, the applicant can use offensive and aggressive (though not threatening) language that is not altogether reconcilable with his claimed radical lifestyle change since his conversion to Christianity in 2002.
The most concerning evidence, however, relates to his admitted former membership of the Nomads OMCG and the fact that his brother, who he sees at regular, though not frequent, intervals remains a fully patched member of that declared criminal organization.
[12]
The public interest
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[13]
Orders
1. Decision under review affirmed.
2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3 is prohibited.
3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR3, or matters contained in the Confidential Material and confidential exhibit CR3, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
4. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR3 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[14]
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
[15]
Amendments
19 March 2024 - On 18 March 2024 the Appeal Panel made the following order:
Pending further order of the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the appellant and the appellant's brother [name deleted] in these proceedings and in Tribunal proceedings 2023/00004292, is prohibited.
[16]
To give effect to that order, the name of the appellant and the name of his brother, together with all references to any information which is likely to lead to the identification of the appellant or his brother, has been redacted from the reasons for decision.
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: 19 March 2024
Parties
Applicant/Plaintiff:
GGW
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Event E89508578, 26 April 2022 (exhibit R1, p 17) arose out of a minor collision on a narrow road, in which the mirrors of the two vehicles collided. The report states that the applicant became "verbally aggressive, abusive, blame shifting and suggesting that [the other driver, a Mr K****] could not drive. Mrs K***** , who was a passenger, became fearful for their safety and said to her husband "if you get out of the car he will punch you" and asked him to leave immediately, which they did, later reporting the matter to police. The applicant said that neither party had been aggressive and there would simply trying to sort it out. S/Const. Jodie Hunt had concluded that neither party was aggressive or abusive towards each other. No further action was taken. There had been no threatening behaviour.
For the past 24 years he had not been the subject of any charges. He had taken courses and was a qualified church pastor (exhibit R1, p 48). In 2021 he applied for registration as qualified to inspect unregistered vehicles. He needed to be a licensed motor mechanic for that purpose (which he was), and also had to show that he was a fit and proper person to do such work, which he did successfully. His work over the years had been subject to inspections, without incident as he followed RMS rules.
As regards domestic circumstances, he was not a member or associated with an OMCG. He finished his association with the Nomads in 1992, when he was expelled as a suspected informant for police. There was no evidence of any association by him with an OMCG after 1992. At that stage the Nomads had not been declared a criminal organization. He was at odds with his brother over the expulsion. His brother comes to visit their mother at her house some four times a year, but the applicant did not interact with him as he is not interested in his brother's lifestyle and is opposed to it. He had no association with the Nomads since 1992 and thus had no criminal associations.
He and his brother live 550 km apart and are thus not in close proximity to each other. If he encounters his brother on a visit to see their mother, no niceties are exchanged. His brother regards him as a police informant. As a result of a motorcycle accident in 2004, he is deformed on his right side and cannot grip anything with his right hand, making him incapable of firing a gun. He may be developing Parkinson's disease
His brother could not enter his house and is not welcome there. On odd occasions they might meet at their mother's house, but he has no access to the house and the applicant has not subscribed to his lifestyle since 2002. He should not, therefore, be a factor in this case.
In cross-examination he agreed that the event reports showed him as being at his mother's residence, but that was because he was living there at the time. In relation to event E49213030, 13 December 2012 (exhibit R1, p 12) he said there had been a dispute over a pathway across the land when his father was building their house. The pathway was not recorded on the title. The applicant said he had no financial interest in it. A solicitor had been involved but he had spoken to someone about it, but could not recollect whether it was on 13 December or not.
The dispute had been ongoing for a period of time. There was no contest about the ownership of the land, just the right of access. The allegation that he had stored objects on the land was false. The land was owned by Mrs Campbell, but Warren C**** had involved himself in the dispute. The applicant had not used the land except for the purposes of the footpath.
Event E53664323, 6 February 2014, reported that the applicant had abused the neighbour, who proceeded to photograph the applicant's vehicle, whereupon the applicant ran towards the putative victim and took a photograph of him up close. Police detected no offence as it was a purely verbal argument, but both parties were advised to apply for a PVO. The applicant agreed that he might have told the neighbour to "f*** off", but he did not recall any photographs and thought the matter was a waste of time.
The applicant admitted to having been involved in about five disputes. He did not take part in any with Warren ***** because he knew what kind of person he was. He said he had not abused Mr D*** at the drop-off at McDonald's but the children had called him a "cheapskate". He himself had never used that word, the allegation being made up to get him into trouble. It was Mr D**** who had reported the matter to the police.
As to the minor collision on 21 April 2022, he said the other driver was aggressive, though the police had said that neither was. But he had said the applicant had been screaming and threatening court procedures. He himself had been under the impression that there was no need to report a collision to police unless the damage amounted to more than $500. The other driver's wife had recorded the incident.
Event E97618102, 20 January 2013 (exhibit R1, p 21) was another complaint by Warren ***** who, the report stated had "taken it upon himself to support and speak for the neighbour regarding the issue, where he has argued on behalf of his neighbour". The informant said he noticed the applicant climb out through a side window of the premises, looking over towards him, before climbing back through the window, then coming back outside the front of the premises to sit out at the front. There was no communication between either of the parties. The applicant agreed that he had stepped out of the bedroom window, which gave easy access, because he had heard a loud noise. He had re-entered through the window and later went out and sat in the front. But there had been no confrontation and no action taken, and that was the end of it. Police advised both parties to avoid contact with each other.
He agreed that on his firearms licence application he had given his address as being at a regional town in NSW (exhibit R2, p 25). That was because he had been living there at the time, but he had not changed his address on his driver licence. He had not changed his address until December 2022. It was put to him that he had only changed his address because the internal review had criticized the fact that he had not changed his residential address on his licence, and that he had changed it for the purposes of the present proceedings. He replied that he changed his address because it was the right thing to do. He had owned that property since 2018. He agreed that the fitness and propriety enquiries made for the purposes of his unregistered vehicle inspection permit were different from those undertaken for a firearms licence.
He had subsequently had offences, but they were not in connexion with an OMCG. There had been the charge of conspiracy to manufacture a prohibited drug and conspiracy to commit a breaking and entering in 1995 (exhibit R1, p 7). He had also been charged with unauthorized possession of a firearm, but he had never been convicted of it and the matter was not biker related. The attempted breaking and entering and stealing was the only one of which he had been convicted, and led to his receiving a sentence of 12 months' imprisonment. The other charges had lapsed because of a plea bargain in relation to the attempted breaking and entering. He had pleaded guilty on the basis that the other charges would not be proceeded with.
The Nomads had been declared a criminal organization after 2000, but members were not as a whole involved in criminal activities. He personally had been individually, but not as part of the group as he did not want the "heat" to be on him. He had very limited contact with his brother. He had learned of his brother's motorcycle accident through his parents, and he was going on the basis of what they reported to him, including about whether he was capable of holding a gun. He had no reason to doubt his family's accounts. It was his mother who told him that his brother was living in a town in regional NSW. She lives approximately 5 km away from him and he is her full-time carer, often being at the premises. He has no more contact with his brother because when he knows he is coming to visit their mother, he lets him be her carer. He visits about four times a year, usually on her birthday, Christmas, Mothers' Day and his birthday.
In his request for an internal review, he had written "I believe that it is not lawful to discriminate against my application taking into consideration of who I am…." He maintained that proposition, saying he had been of proven character for over 24 years and should be considered a fit and proper person. He acknowledged that he had been in jail in 2000 - 2001, some 22 years ago, adding that he had "not been good before then, not at all". He had no idea whether his brother was still a Nomad or whether he still rides.
He admitted that his old address had been on his licence at the time of the minor collision, but said he had gone to see the police and told them that he had moved. Their conversation was not recorded, but he did say it. He agreed that in his written submissions he had spoken of supporting minority groups, but to the suggestion that that had nothing to do with safety, he said it did show a character change. He stressed that he had very little to do with his brother and had not wanted to interview him because any contact could bring trouble on him. He did not want anything to do with that lifestyle, and his brother was not welcome in his home.
The applicant also relied on some character references, the contents of which are outlined below, as is some confidential evidence adduced at a confidential hearing following the conclusion of the open hearing.
In 2019 he had undertaken and completed his Certificate IV in Property Services - Real Estate through TAFE and had opened a local real estate office with his wife in 2019, but unfortunately the COVID-19 restrictions were imposed. Through that difficult time, he and his wife had seen the needs of people in the local community and launched a free food rescue and food distribution organization.
They met with Liesl Tesch MLA in 2021 to explain what they were doing for many people in need. As a result they received a New South Wales Parliamentary Hansard Community Recognition Statement from their office in March 2021. They also received charity status from the Australian Charities and Not-for-profits Commission in September 2021, and also have had Australian Tax Office approval to be a deductible gift recipient since 15 September 2021.
As regards his domestic circumstances, he writes that he became a Christian in 2002 and is totally against the beliefs and lifestyles of people who are involved in criminal activities and lawlessness. He has committed no criminal offences in over 10 years and has met every requirement for the firearms application. He is a Christian family man with a wife and three children and runs a charity that provides food rescue and food distribution to many people in need.
He believes he has more than proven his ability to follow rules, regulations, legislation and to take responsibility for people's welfare and safety. He believes it is not lawful to "discriminate" against his application, taking into consideration who he is, and that he has met every requirement of the application process. He does not believe that he should be discriminated against because another person chooses to follow different beliefs and lifestyle choices. Both he and his wife are fully aware of the rules and regulations and legislation governing firearms and would not in any circumstances jeopardize their freedom, be involved in any criminal activity or put their children in danger, or jeopardize anything they had worked so hard to achieve.
His brother GHC lives in Grafton and does not have any keys to his property. They do not socially interact because of their differing lifestyles. As a result of a severe motorcycle accident, GHC has been drastically impaired because of deformities to a number of his limbs, including his right forearm, wrist and hand. According to his mother, GHC is on a Centrelink disability pension.
Fit and proper person
Section 11(3)(a) provides 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". Nor may a licence be issued to a person if there is reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of "the applicant's way of living or domestic circumstances".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding .in Hoffman v Commissioner of Police, New South Wales Police Service that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
The first matter relied on by the respondent is the applicant's criminal history. It includes some serious offences. On 31 March 1999 at Brisbane Local Court, Queensland, he was convicted of robbery with actual violence and sentenced to imprisonment for seven years, which was reduced on appeal to 5½ years. On 20 October 2000 he was convicted at Campbelltown District Court of attempted breaking, entering and stealing, and sentenced to imprisonment for 12 months.
Between 1989 and 1995, he faced two charges of cultivating a prohibited plant, possessing a prohibited drug (three charges), driving an unregistered and uninsured vehicle with false licence plates, conspiracy to manufacture a prohibited drug, breaking and entering armed with intent to commit an indictable offence, possessing a housebreaking implement and unauthorized possession of a firearm.
While a long time has elapsed since the above charges, the respondent submits that this should not detract from the serious nature of his actions, associations and convictions. It was submitted that an appreciation of an applicant's entire history, not merely his or her recent conduct, is an important consideration. Firearms ownership is generally not available to people who have demonstrated a disregard for public safety: White v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 336, [40].
Next, the respondent points out that the applicant has come to police attention as a result of several verbal arguments with his neighbour over a legal dispute concerning rights of access on a shared driveway to some battleaxe blocks. The applicant's property is actually his mother's home, but it appears that he was living there at the time. According to event report E49213030, the informant, Warren ****, had taken it upon himself to support and speak for the neighbour regarding the issue, where he argued on behalf of the neighbour. On 7 December 2012 the applicant was standing in the common driveway talking to several neighbours. At that time the applicant arrived home in his vehicle and drove down the driveway. (There appears to be a contradiction here; perhaps the reference to the applicant standing in the driveway should instead refer the to the informant, Warren, or another neighbour).
The informant's dog was also on the driveway, and the informant picked it up when he saw the vehicle coming down the driveway. While he was bending over, the report states, the applicant's vehicle came close to his head and the informant claimed that he was trying to hit him as he was bending over. When the informant said something to the applicant about his manner of driving, the applicant said "You can all get f***ed, if I wanted to hit you I could have hit the lot of you and kill you all". No charges were laid but police advised Warren to let the civil law take its course instead of becoming involved in a matter which had no relation to his living arrangements (exhibit R1, p 12).
The applicant said that three persons were behind the allegations and that the Magistrate had found that they were not credible witnesses. (It appears that some Local Court proceedings ensued, but it is not clear how they were instituted.) In the Local Court it had been alleged that he had assaulted Warren, but it was Warren who attacked him with a weapon, with the result that the applicant was acquitted of all charges. The dispute had been ongoing for a period of time, but there was no contest about land ownership, only over the right of access. He denied storing any items on the piece of land and had only used it as a footpath. The land was owned by a Mrs Campbell, but Warren had involved himself in the matter.
Another incident relied on occurred on 5 February 2014 (E53664323, exhibit R1, p 14) when the victim (presumably Warren or one of the other neighbours) noticed an unknown vehicle stop outside his house. In view of the continuing dispute with the applicant, he walked up to check the vehicle out, whereupon the applicant allegedly abused the victim, telling him to "f*** off". The victim proceeded to photograph the applicant, the applicant then running towards the victim and taking a photograph of him up close. No offence was detected and no charges were laid. The applicant said it was "possible" that he had used the profane language, but had no recollection of any photographs being taken.
Event report E55857755 (exhibit R1, p 15, 21 April 2014) related to the applicant yelling general abuse at Warren, but none of it of a threatening nature. The report continued, "The VIC [Warren] and the POI [the applicant] have had several neighbour disputes over the years and none of them were of a violent or threatening manner. Both the POI and the VIC call police about this dispute".
A report describing insults levelled by the applicant at his wife's ex-husband (Mr D****) over the latter's reluctance to give the children money to spend at McDonald's on 4 October 2020 was reported to police by Mr D***, but police determined that no offence had taken place (E78824086, exhibit R1, p 16). The respondent submitted that although no charges were laid as a result of those incidents, they demonstrated a clear pattern of aggressive and threatening behaviour when presented with conflict. The applicant said he had not called Mr D**** a "cheapskate" as alleged, though the children had, and the account had been made up to get him into trouble. It had been Mr D**** who reported it to the police.
Further, the respondent submitted, it was well established that it is an applicant's conduct, not his or her convictions, which is of concern of the tribunal and the fact that no charges had been established to the criminal standard was irrelevant. The conduct was relevant both to fitness and propriety and to the public interest. In relation to the McDonald's incident, the applicant said that Mr D*** had been upset because his ex-wife had won a Family Court case and that there had been no abuse by him at all.
The report about the minor collision ura (E89508578, 21 April 2022, exhibit R1, pp 17 - 20) stated that the applicant had allegedly got out of his vehicle and approached the other driver, a Mr K****, in a verbally aggressive, abusive, blame-shifting manner. Mr K***'s wife became fearful for their safety and said "if you get out of the car he will punch you" and asked her husband to leave immediately, which they did. The applicant said the incident had occurred when their mirrors had collided on a narrow road where the applicant was unable because of obstacles to move further left. He said that in fact Mr K**** had abused him, but he had recorded it and photographs taken at the scene showed that was incorrect.
The applicant had provided an audio recording of the conversation between the parties, which, the police report concluded, showed that "Neither party was aggressive or abusive towards each other despite DRI 2 (Mr K***) forming the mindset that he would be in danger should he get out of his vehicle". The applicant pointed out that as police had accepted that the photographic record showed that no aggressive or threatening behaviour was involved, the incident was not relevant.
The applicant agreed that on p 25 of his application for a firearms licence he had given his address at the premises he had owned since 2018, as he had been living there, but he had not changed his address on his driver's licence until 2022. He denied that he had made the change for the purpose of these proceedings as it had been pointed out in the internal review decision, but because it was the right thing to do. He had gone to see the police and had told them that he had moved. The discussion was not recorded, but he did say it. He had not, however changed his address.
Another matter which the respondent submitted was relevant both to fitness and propriety and to the public interest was the applicant's domestic circumstances and his associations with OMCGs. It was not disputed that the applicant had been a member of the Nomads OMCG until at least 1992, and that his brother GHC remains a member. In Tolley v Commissioner of Police [2006] NSWADT 149, [31] the tribunal said that given the overriding object of public safety, there was no basis for differentiating between conduct of the applicant himself or herself and conduct of another that might impact on public safety in the context of a firearms licence.
The charge of unauthorized possession of a firearm (exhibit R1, p 7) had not resulted in a conviction and was not related to an OMCG. Similarly, the 1995 conspiracy to manufacture a prohibited drug and the breaking, and entering and stealing were not related to bikers or an OMCG. The attempted breaking and entering and stealing was the only offence of which he was convicted, for which he was sentenced to 12 months' imprisonment (id., 8). The other charges had lapsed as a result of a plea bargain. He had pleaded guilty to the attempted breaking, entering and stealing on the basis that the other charges would not be proceeded with.
It was submitted that the applicant's domestic circumstances gave rise to serious concerns that he would not be able to exercise continuous and responsible control over firearms. As GHC visited his mother four times a year at her house which lay only a short distance from the applicant's, there was a real and appreciable risk that GHC or other associates of the OMCG could have access to firearms stored on the premises.
The applicant testified that he is not a member of, or associated with, any OMCG. He finished his association with the Nomads in 1992 when he was expelled as an alleged informant for police. There was no evidence of association after that. Further, at that time the Nomads had not been declared a criminal organization. The applicant was now at odds with his brother over the expulsion, but he was not interested in GHC's life and was opposed to that lifestyle. Consequently he had no criminal associations.
The respondent also raised s 39(1)(c), which provides that a licensee must take all reasonable precautions to ensure that firearms do not come into the possession of individuals who are not authorized to possess a firearm. Here again, the respondent submitted that as the applicant lives only a short distance from his mother's residence, which GHC visits at least four times a year, there was a real and appreciable risk that GHC or other associates of the OMCG could have access to any firearms stored there.
The open statement of Detective Sergeant Bruce Groenenwegen (part exhibit R2) lists 18 occasions between 1991 and 2022 when GHC had been stopped by police while wearing Nomads OMCG full member colours. Six of the reports relate to sightings after 2004, when the applicant had said GHC had suffered serious injuries in a motorcycle accident and was unable to grip anything on his right side, including with his right hand. Most of the reports after 2004 do not specifically say that GHC was riding a motorcycle at the time (though that may be implicit), but a report dated 25 October 2012 describes him of being with a large group of other men wearing Nomads colours and participating in the Nomads National Run. That strongly suggests that he was physically able to ride and handle a large motorcycle, probably over quite long periods.
The applicant countered that he and his brother live over 550 km apart. Further, the motorcycle accident in 2004 that led to his being deformed on his right side, and unable to grip anything, thus incapable of firing a gun. He might also be developing Parkinson's disease. He did not know whether GHC was still riding motorcycles. GHC could not enter the applicant's house, as he is not welcome and he sees the applicant as a police informant. He should not, therefore, be a factor as he had no access to the house. The applicant has not subscribed to GHC's lifestyle since 2002. He had learned of GHC's situation as his mother had told him about it and he had no reason to doubt her word.
When the applicant knew that GHC was going to visit their mother, he let him be her carer for that time. He said he had been of proven good character over 24 years and should be considered a fit and proper person. He had served a custodial sentence in 2000 - 2001, which was 22 years ago, and admitted that he "had not been good before then, not at all". He had not wanted to interview GHC because he believed any contact with him would bring him trouble.
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Mrs C**** wrote a further letter, as the applicant had asked her to write about her dealings with one of their old neighbours, Warren *****, who she understood had made accusations against GGW's character. In her experience, Warren twisted facts and lost his temper and used bullying tactics on her and also a young man who was attending a party for her son. The letter also gave details of an episode which included Warren's "bullying and intimidating language" towards her while her husband was not at home. Other women in her street had confided in her that he was given to doing the same thing to them when their husbands were not at home.
The letter also gave details of Warren's abusive behaviour to the young man mentioned above. He had become a talebearer who caused a rift between neighbours in the street. While her family had tried to stay away from such strife, it did affect their relationships with other neighbours who were listening to Warren. Since Warren had moved away, all neighbours were once again speaking with each other and civil to each other. In her opinion Warren was unstable and unreliable as a witness. The referees were not required for cross-examination.
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The Court of Appeal has acknowledged that OMCGs are commonly recognized as being involved in criminal activities: Stealth Enterprises Pty Ltd v Calliden Insurance Ltd [2015] NSWSC 1270, [101], affd. [2017] NSWCA 71. The tribunal has stated that OMCG membership is a risk in the firearms context: Azzopardi v Commissioner of Police, New South Wales Police Force [2013] NSWADT 205, [50]. Consequently a person who declines to dissociate himself or herself from an OMCG will not be a fit and proper person to be issued with a firearms licence: Sciberras v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 206, [80], [95].
The applicant states that he has had no contact with the Nomads OMCG for over 22 years, since he was expelled from the club as a suspected police informant, and strongly disapproves of its lifestyle. He has not come under adverse notice since then and says he has changed his lifestyle completely since his religious conversion in 2002. In White, the tribunal said that firearms ownership "is not generally available to persons who have demonstrated a disregard for public safety" (at [40]), such as presumably by OMCG membership and participation.
That is the general rule, but people can and do change. Indeed, New South Wales was founded in part as the land of the second chance, and since about 2002, the applicant has redirected his life into positive channels. He has earned 11 qualifications in fields such as authorized motor vehicle inspection and small business management and has completed several courses in Christian ministry from Ellel Ministries Australia and Hillsong.
He and his wife have founded a successful charity to provide provisions for needy people in the area that has earned him a parliamentary commendation through their local MLA. He tries to avoid any contact with his OMCG brother GHC who he believes has orthopaedic and other medical problems that would severely handicap his participation in criminal activities, and specifically would make him unable to grip and fire a gun. His character referees, who have known him over a long period, are aware of his past but see him now as an upstanding member of the community.
The applicant is a man aged 60, married with three children, who until about 22 years ago had incurred serious criminal convictions and was an active member and participant in the Nomads OMCG. Since then, however, he has severed his criminal associations and transformed himself into a productive and law-abiding citizen who is well regarded in the community. He has expressed serious remorse over his earlier lawless behaviour.
As recently as 2020 he evinced some tendency in stressful situations to resort to abusive language, but he has no history of violence or of threatening violence. He has no alcohol or drug problems and no history of mental health problems. He is currently a member of a regional Hunting and Sport Shooting Club. (part exhibit A1). The evidence as a whole shows him to be a fit and proper person to have access to firearms without risk to public safety or the peace, and I so find. There remains, however, the question of the public interest.
The respondent's main public interest concern is the fact that the applicant's brother GHC is and remains a fully patched member of the Nomads OMCG. He has been identified as such when stopped and spoken to by police on 18 occasions between 1991 and 30 May 2022. As the applicant himself admitted that his brother visits their mother's residence at least four times a year, with the applicant living only a short distance away, the respondent submits that there is a real and appreciable risk that the applicant's brother or other associates in the OMCG could have access to any firearms stored on the premises. Section 39(1)(c) provides that the holder of a firearms licence must take all reasonable precautions to ensure that the firearms do not come into the possession of individuals who are not authorized to possess them.
As was noted above, in Tolley the tribunal stated that there was no basis for differentiating between the conduct of an applicant and conduct of another that may impact on public safety in the context of a firearms licence. It was not disputed that GHC is a fully patched member (and possibly a life member) of the Nomads, which is a declared criminal organization. As the tribunal pointed out in Azzopardi, people who associate with OMCG members may be a source of risk in relation to the possession of firearms.
The applicant acknowledges that GHC visits their mother's house four times a year on average, but explains that he endeavours to avoid contact with him by deputizing him as their mother's care for the duration of his visit, and that if they do chance to meet, no pleasantries are exchanged. He strongly disapproves of his brother's lifestyle, a sentiment that GHC apparently reciprocates, as he regards the applicant as a police informant. Nevertheless, GHC does know where the applicant lives and could visit him, notwithstanding that he is not welcome t.to do so.
The applicant also submits that following a motorcycle accident in 2004, GHC is "disfigured" on his right side and unable to clench his right hand, thus making him physically incapable of holding and firing a gun. He might also be developing Parkinson's disease. The applicant acknowledges that those assertions are based on what he has heard from family members, and says he has no reason to doubt them. There is no corroboration for that description of his medical and orthopaedic condition, however.
The open statement of D/Sgt Groenewegen casts doubt on the accuracy of that evidence, however. It reports six encounters between GHC and police between April 2009 and May 2022, well after he sustained the injuries from the accident. The police reports of stopping and speaking to GHC during that period do not explicitly state that he was riding a motorcycle at the time, although it may be implicit from the context. On 25 October 2012, he was stopped and spoken to at a regional town in NSW while wearing the colours of a full member of the Nomads, with a Chapter patch and five-year membership patch, and participating in the Nomads National Run. The applicant testified that he did not know whether GHC was still riding motorcycles but his description of GHC's injuries tended to make that appear unlikely. Yet the police records show him as actively involved in the Nomads National Run, which would almost certainly have required him to be riding a motorcycle.
Even if he were unable to do so, or to fire a gun, his club associates would not be so hampered and could bring pressure to bear on the applicant to supply them with firearms, as has been known to happen in other cases. That is not merely a theoretical or fanciful concern as understood in Webb. The police report following a sighting of GHC on 6 September 2013 states that "Additionally, Police were told that GHC had used his membership of the Nomads to threaten and intimidate his neighbours, telling them that he would 'sort them out'" (information report I52522376). GHC's associates might not feel diffident about threatening and intimidating an expelled member whom they regarded as a police informant for the purpose of gaining access to his firearms.
The applicant testified that he did not know whether GHC is still riding or not. His evidence about his brother's orthopaedic problems and possibly incipient Parkinson's is double hearsay and appears to be at least partly incorrect, as police reports indicate that GHC is well able to handle a heavy motorcycle, probably over long periods, and actually does so. That would suggest that there is no reason why he would be unable to handle and use firearms. There is also no direct evidence of GHC's current place of residence. The applicant has undertaken the prescribed firearms course, including the safe storage precautions, and while his willingness to comply with those practices may be accepted, he does not specifically indicate what precautions he would take were he to obtain a licence. In the circumstances that could be material.
As matters stand, there is insufficient up to date evidence to allay concerns that GHC's continuing Nomads full membership and observed willingness to resort to intimidation, coupled with the applicant's earlier OMCG membership, could make issuing a licence to the applicant contrary to the public interest (s 11(7)) or that GHC's OMCG involvement might impair the applicant's ability personally to exercise continuous and responsible control over firearms (s 11(4)(a)). In the absence of further evidence it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety, as understood in Webb.
The evidence thus leads to the conclusion that the applicant is a fit and proper person to hold a firearms licence, but that it would not at present be in the public interest for him to do so, and I so find. The decision under review must be affirmed.