Gibson v Commissioner of Police, NSW Police Force

Judgment (9 paragraphs)

[1]

REASONS FOR DECISION

This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to refuse his application for a Category A firearms licence.
For the reasons that follow, the correct and preferable decision in this matter is for the decision under review to be set aside and a category A firearms licence is to be issued to the Applicant.

[2]

Background

The Applicant previously held a firearms licence for approximately 24 years which expired on 17 May 2022. On 21 September 2022, the Applicant's new licence application was lodged but was refused on 2 November 2022 and affirmed on internal review on 25 November 2022.
The application the subject of this review is for a category A licence (the Application). The Applicant's stated genuine reason for the licence is in his capacity as a primary producer which requires the use of a firearm for vermin control to protect livestock.
The delegate of the Commission refused the Application based upon allegations contained in two Police Event Reports as summarised below: 1. On 19 February 2013, a report was made to police alleging persistent aggressive behaviour over the phone towards staff of the Environmental Protection Authority (EPA). The report alleges that the applicant indicated that if the associated issue was not resolved "someone will get hurt" (the Alleged Threat); 2. In July 2014, a report that the Applicant was allegedly verbally abusive towards two individuals and made threats to shoot them in the context of one of these individuals allegedly observing that the Applicant's firearms were not stored consistent with legislative requirements (Water Cart Allegations). In respect of the storage of firearms, the Police Report describes a representative of an on-line auction company seeing firearms laying on a workbench in a shed while on the Applicant's property and otherwise not secured within a safe (the Firearm Storage Allegation).

Submissions

In making the case that the Commissioner's decision to refuse the Applicant's application for a Category A firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner drew the Tribunal's attention to the Applicant's conduct as alleged in the Police Reports described at paragraph 5 above, as well as other alleged conduct of the Applicant as described in additional Police Reports not referred to in the decision made on internal review but included in the s 58 bundle. These alleged incidents are summarised by the Commissioner as follows: 1. On 18 October 2008, a report was made to the police that alleged, in the course of an argument, that the Applicant drove through another person's locked gate and then attempted to run the person over with their car. The Applicant is alleged to have thrown a plasma television into a pool before leaving the location (Television Incident). 2. On 31 December 2020, there was a domestic incident that was reported to the police, regarding the Applicant's daughter and a third party becoming involved in an argument, whereby the Applicant was unable to diffuse the situation, subsequently became involved in the argument and called the police. Owing to the nature of the incident, the Applicant's firearms were temporarily removed from the property for a cooling period but subsequently returned to him (Domestic Incident).
Based upon these alleged incidents, the Commissioner contends that the evidence demonstrates that the Applicant has previously exhibited aggressive and at times violent behaviour. Additionally, the Commissioner drew the Tribunal's attention to the allegation in one of the Police Reports that the Applicant had not stored his firearms as well as the evidence that the Applicant had allowed his licence to expire. Based upon these allegations, the Commissioner submits that it is not in the public interest for to hold a firearms licence as the Tribunal cannot be satisfied that there is "no risk" associated with the granting of the Applicant's firearms licence.
Conversely, as described in more detail below, the Applicant disputes the factual allegations relied upon by the Commissioner.
In respect of the alleged events of 18 October 2008 and the Television Incident, the Applicant admits throwing a television into a neighbour's pool in frustration however, he submits it was in exceptional and traumatic circumstances. A few days prior to the day of the Television Incident, the Applicant's close friend and neighbour had gifted him a television. A day prior to the Television Incident, that friend committed suicide and it was the Applicant who had discovered his friend's body. The day after discovering his friend's body, the Applicant received telephone calls from the step-daughter of his deceased friend asking for the return of the television which became argumentative.
The Applicant denies driving through locked gates rather, the gates were farm gates with a latch (not a lock) and could be opened if they are nudged with a bull bar which is what occurred according to the Applicant. The Applicant denies attempting to run anyone over and rather the car pulled up on the grass a significant distance from the house and the seated area where people were located.
In respect of the alleged events of 19 February 2013 and the Alleged Threat, the Applicant describes certain telephone calls made by the Applicant to the EPA complaining about alleged breaches of zoning by a composing facility located within approximately 300 metres from the Applicant's property. According to the evidence of the Applicant, the Applicant's complaints were caused by his concerns related to a terrible stench coming from the composing facility and specifically his concerns that the actions of the composing facility were causing the air and water sources available to the Applicant, his neighbours, and his livestock to become polluted. The Applicant's concerns increased as it appeared to him that nothing was seemingly being done about the issues.
According to the evidence of the Applicant, he was informed by the EPA that he and his neighbours should report the odours whenever there was an odour present with the view that if there were more reported incidences, that may prompt further investigation and escalate the matter. As such, the Applicant reported the odour whenever it was present which was, according to the Applicant, often. The Applicant admits that, while speaking with the EPA, he said the following words and he said them while frustrated "Someone will get hurt"
However, according to the Applicant, the reference was not directed at the Applicant threatening any employee at the EPA (or anyone else) but was his observation related to the risk associated with the pollution, that is, that someone was going to get hurt because of breathing the stench and drinking polluted water. Otherwise, the Applicant accepts he telephoned the EPA many times but that such calls were as a result of following the advice of the EPA and that the frequency of the calls was reasonable because of the frequency of the stench.
In respect of the events occurring in July 2014 and the Firearm Storage Allegation, the Applicant's version is that a representative of an on-line auction company visited the Applicant in the context of the Applicant listing a water cart for sale. According to the Applicant, he took the representative out to the paddock to view the water cart and did not take the representative into or near any sheds or workbenches. The Applicant denies that firearms were not stored correctly and challenges the Police Report on the basis that even if his guns were on a workbench (which he denies), the representative never entered any sheds to see any workbenches in any case.
With respect to the Water Cart Allegations, the Applicant gives evidence that: 1. the water cart did sell at auction and within 24 hours of the auction, the successful bidder had made several calls and text messages to the Applicant. The Applicant was otherwise busy and could not respond except to send a text explaining that he was in an all-day meeting and would call when possible. 2. Despite the text from the Applicant, the calls and text messages continued which the Applicant found frustrating as there were no cleared funds in the Applicant's account and it was his understanding that a successful bidder could not collect the goods until payment was received. 3. The day after the auction, a stranger turned up at the Applicant's property unannounced who the Applicant later understood was the bidder's representative. The Applicant allowed the person to measure the water cart but he was concerned about how the person obtained his personal details and home address and felt unhappy about what he considered to be an intrusion. 4. At around 5.07pm that evening, the Applicant called the successful bidder regarding his representative's visit. The Applicant describes the successful bidder as becoming "aggressive" and a conversation occurred with words to the following effect: Successful bidder: "I just want to measure up the water cart and you won't return my calls" Applicant: "Hang on a minute, this is my place and this is still my truck, you haven't paid for it yet" Successful bidder: "Wake up to yourself, do you want to sell the truck or not?" Applicant: "Not now" 1. Shortly after the conversation, the Applicant sent an email to the on-line auction company's representative which stated: "[Name] For your record, … water cart winning bidder arrived at our property unannounced … following this I had a discussion over the phone with you, then returned bidders missed call, then I received a message from bidder stating "you're a arse clown belter". As I mentioned over the phone conversation I class the arrival of this person at my property as trespassing, if any equipment / machinery happens to go missing in the comping months I will hold … online [auction house] liable as you disclosed the address to this bidder A: prior to consulting myself; B: prior to cleared funds for asset. I presume from this text message from the winning bidder the asset will not longer be required. I look forward to your letter stating the status of this transaction. 1. According to the police report, when the Applicant spoke with the auction house representative, he was aggressive, verbally abusive, used profanities, and threatened to shoot him. The Applicant's evidence is that he was annoyed but does not recall the conversation getting heated and denies making any threats to either the representative or successful bidder.
With respect to the events of 31 December 2020 and the Domestic incident, these facts do not appear to be in dispute. The Domestic Incident concerned the Applicant's daughter and her partner on new year's eve while at the Applicant's property. The Applicant assisted police in attending his property due to a domestic altercation in which the police noted the Applicant attempted to defuse the situation. As the incident was of a domestic nature, the police removed the firearms for a cooling off period, however, the Applicant's firearms were then returned.
In respect of the disputed facts, the Applicant submits that little weight should be given to the Police Reports given that none of the individuals who gave information to the police have given evidence in these proceedings which would then have allowed the Applicant to challenge those allegations by way of cross-examination. In those circumstances, namely where the Applicant disputes the accuracy of the allegations, and has given evidence in the proceedings - the Applicant submits that the evidence of the Applicant should be preferred.
In summary, and as stated in the written submissions on behalf of the Applicant, the Applicant contends the Commissioner has not provided adequate evidence to support the position that the Applicant poses a public safety risk and therefore it is in the public interest to refuse the applicant a firearms licence.

Consideration

The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. Strict controls on the possession and use of the firearms are imposed in the interests of public safety: Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44].
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Considerations may go beyond the character of the Applicant and 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 [2013] NSWADTAP 16 at [33].
In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety, the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests.
It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.
Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
In applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant's interest in shooting is a legitimate one as a primary producer.
However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include 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 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Accordingly, the Applicant's genuine reason for holding a firearms licence cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
In respect of the disputed facts concerning the alleged events of 18 October 2008, 19 February 2013, July 2014, I accept the evidence of the Applicant. I find that the Applicant was an honest witness who gave evidence openly and with candour. This finding is also supported by the evidence relied upon by the Commissioner and specifically the Police Reports. In this respect, there are elements of the Police Reports that sit uneasily with their accuracy, or at least, do not provide a basis to make an adverse finding against the Applicant. Specifically: 1. In respect of the alleged events of 18 October 2008 and the Television Incident, the Police Report states: "There was no damage to the vehicle nor the outdoor setting to assist with the version supplied by the victim. There will be no further action …" 1. In respect of the alleged events of 19 February 2013 and the Alleged Threat, the Applicant admits that he said words to the effect "someone will get hurt". However, such words when understood in context and specifically that the complaint being made by the Applicant at that time was that someone would get hurt because of pollution is not a basis to find that he conducted himself in a threatening manner towards the EPA. 2. In respect of the events of July 2014 and the Police report relating to the Firearm Allegations and Water Cart Allegations, the source of this information and accuracy of the narrative is unclear. In answer to the Tribunal's question, the representative for the Commissioner indicated that the individual who provided the information for this Police Report was the representative of the on-line auction company as derived by the fact he is noted as "witness and victim". Whereas the successful bidder is noted only as "victim". The representative of the bidder who arrived unannounced at the Applicant's home is not identified at all. In any case, the representative of the on-line auction company was not present during the visit by the successful bidder's representative or privy to the conversations as between the Applicant and the successful bidder. To the extent he has knowledge of these events, it is not by way of direct knowledge and otherwise, the source is entirely unclear. In those circumstances, I do not find that the report is persuasive for the purposes of proving what did and did not occur in July 2014 and I do not rely upon it.
Lastly, there does not appear to be a dispute with respect to the Domestic Incident occurring on 31 December 2020. As such, the actions of the Applicant on that occasion were of assistance to the police and do not provide a basis to challenge the Applicant's character.
I accordingly accept the Applicant's submission that where the Applicant disputes the accuracy of the allegations, the evidence of the Applicant should be preferred. In accepting the Applicant's evidence, I accept that evidence before does not support that the Applicant poses a public safety risk. While I accept that the Applicant has exhibited aggressive behaviour specifically with respect to the Television Incident: 1. I accept that the circumstances were exceptional given that the Applicant had discovered his close friend's body the day before and the television has been a gift from his friend. 2. that the incident occurred, in any case, 15 years ago and sufficient time has past without a repeat occurrence to satisfy me that it was out of character for the Applicant; 3. In any case, the incident did not involve a firearm, the threat of a firearm or pertain to firearm usage in any way and the Applicant has continued to hold his firearms since then with no incident.
Accordingly, the totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the Applicant and the correct and preferable decision is to set aside the decision under review.

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Judgment (9 paragraphs)

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Cases Cited (4)

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