Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 6
Source
Original judgment source is linked above.
Catchwords
Bronze 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 Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 6Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald v Director-General, Social Security [1984] FCA 57, (1984 1 FCA 354Meggitt v Commissioner of Police [2022] NSWCATAD 353Mulligan v Commissioner of Police [2020] NSWCATAD 272Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Schettler v Commissioner of Police [2013] NSWADT 52Sterjovski v Director-General, Department of Transport [2002] NSWADT 10Tolley v Commissioner of Police [2006] NSWADT 149Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Category: Principal judgment
Parties: GKU (Applicant)
Judgment (18 paragraphs)
[1]
ns named in the condition under review are to be anonymized and not to be disclosed.
[2]
(2) Pursuant to s 64(1)(c) of the CAT Act, publication of the confidential material, of confidential exhibit CR4 and of matters contained in that material is prohibited.
[3]
(3) Pursuant to s 64(1)(d) of the CAT Act disclosure of the confidential material, of confidential exhibit CR4 and of matters contained in that material is restricted to the respondent, the respondent's legal representatives and the tribunal.
[4]
(4) Pursuant to s 64(1)(b) of the CAT Act, the publication and reporting of the confidential part of the hearing is prohibited.
[5]
Reasons for decision
The evidence in this case included some information relating to the health and behaviour of minors, as well as matters relating to persons who are neither parties to, nor witnesses in, the proceedings. Consequently, I directed that the name of the applicant and of five other persons mentioned should be anonymized and substituted with a code.
The applicant GKU applied to this tribunal on 20 February 2024 for review of a decision by the respondent Commissioner on 25 January 2024 to impose a special condition on his category AB firearms licence (exhibit R1, pp 91 - 94).
GKU has held a firearms licence for approximately 26 years and has an unblemished history, both in relation to firearms and generally. On 19 July 2023, he was issued with a category AB licence for the stated reason of sport and target shooting and recreational hunting/vermin control, as a member of a hunting club. The respondent does not seek to revoke or suspend the applicant's firearms licence. The applicant and his wife have a son, GNZ, whose wife is GOC. They have three children, GPB, GPM and GQA (thus the applicant's grandchildren).
On 1 December 2023, the respondent by notice in writing based on information held determined to impose a special condition to ensure public safety, requiring that the applicant's possession and storage of firearms were not to be accessible to GNZ (born xxx xxx 1983) (exhibit R1, pp 84 - 85).
The applicant sought an internal review of that decision and on 25 January 2024 the respondent varied the condition to require that the applicant be prohibited from storing firearms, firearm parts and ammunition at any location where GNZ, GOC, GPM, GQA or GPB resides or frequents and, further, that he was prohibited from handling or using firearms, or removing firearms, firearms parts and ammunition from any safe storage facility in the presence of any of those persons.
The applicant on 20 February 2024 applied for administrative review of that decision in this tribunal, and the matter came on for hearing on 5 July 2024 by audio visual link (AVL). The AVL link proved unworkable, however, and the hearing had to be conducted with the applicant participating by telephone. A confidential hearing was also held.
[6]
Applicable legislation
Section 19(1) of the Firearms Act prescribes that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23] the tribunal noted that while there is no guidance in the legislation to show how discretions such as the one in s 19(1) should be exercised, those discretions should be exercised so as to promote the principles and objects of the Act. The dominant principle of the Act as stated in s 3(1) is the preservation and improvement of public safety.
Thus the issue in this application is whether it would be contrary to the public interest for the persons named in the special condition, or any of them, to reside at, or frequent, any premises where the applicant's firearms are stored.
[7]
The evidence
The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and a volume of supplementary evidence (exhibit R2).
The applicant did not lodge a witness statement as such but instead relied on a document combining evidence and submissions (exhibit A1). The parts constituting submissions are summarized below, but insofar as it constituted evidence, it stated inter alia that the applicant's son GNZ and his (GNZ's) family live in Victoria, approximately 300 km from the applicant's home in Broken Hill. GNZ works in the mines in Kalgoorlie, Western Australia on a 12-days on and 12-days off roster. When he is away for work, his wife GOC (aged 45) single-handedly copes with the challenges of raising their three boys and running the family home. Their son GQA (aged 14) has behavioural difficulties.
GOC has no family nearby who could provide support while GNZ is away in Western Australia. The applicant and his wife GRC (both retirees) would do anything they could to assist and would welcome GOC and the children into their home. For practical reasons, it would be preferable for GOC and the grandchildren to stay with them at Broken Hill rather than his wife GRC and himself driving to Merbein. The respondent's special condition would preclude him and his wife providing respite support for GOC and the children in a time of need.
He acknowledges that his son GNZ has previously had adverse contact with police, but said that his substantive offences occurred 20 years ago when he was "young and stupid", aged in his early 20s. Since that time he has matured and is now a responsible married man with a family and responsible job working in the mines in Western Australia.
His own firearms are stored in strict compliance with the requirements of the Act and his compliance has been confirmed by safe storage inspections conducted by police in 2004, 2012, 2019 and 2024. The keys to his gun safe are carried on his person and no-one else has access to the safe. He believes that the alternative condition he has put forward, that he temporarily relocates his firearms to an alternative safe storage location whenever GNZ visits, would in no way diminish or compromise public safety.
If GNZ and his family were visiting, he would take all reasonable precautions to ensure that his keys did not come into the possession of his son, his wife or his children. It was noteworthy that despite the police having knowledge of GNZ's criminal record for over 20 years, the Commissioner had never raised concerns about his gaining unauthorized access to his firearms until imposing a special condition on his licence on 1 December 2023. At no stage has GNZ, GOC or their children ever attempted to obtain access to his firearms during family visits to his home. There was no reasonable cause to believe that they would attempt to do so in the future.
[8]
Applicant's submissions
In his written submissions (part exhibit A1) the applicant contended that the decision was not correct or preferable. He acknowledged that his son GNZ had previously had adverse contact with the police, but the substantive offence for which he was charged and convicted was over 20 years ago when he was "young and stupid", aged in his early 20s. Since that time he had matured and was now a responsible married man with a family and a responsible job, working in the mines in Kalgoorlie. Neither he nor the applicant should be punished for offences that were committed a very long time ago and for which GNZ had paid the prescribed penalty. As the tribunal had stated many times, the licensing regime is not about punishment, it is about protecting the public.
The Commissioner had provided no probative evidence to support her assertion that GOC and her children would pose a risk to public safety if they were to attend at the applicant's home where his firearms were securely stored. The Commissioner's concerns were theoretical and should be excluded from consideration.
The Commissioner had no reasonable cause to believe that the alternative special condition that the applicant proposed, namely, that he temporarily relocated his firearms to an alternate safe storage location whenever GNZ visited, would in any way diminish or compromise public safety. The present case had similarities to Schettler v Commissioner of Police [2013] NSWADT 52 in which the applicant's son had been convicted of serious criminal offences and sentenced to a term of imprisonment. Bail conditions had required the son to live in the applicant's home.
The tribunal had noted that the condition imposed by the respondent, requiring that the applicant's firearms be stored away from the family home, remained reasonable up until the imprisonment of the applicant's son, but during imprisonment the condition should be removed. It would be reasonable, the tribunal said, to require the applicant to notify the respondent when his son was released from prison, if he proposed to live with the applicant, so that a further assessment could be made.
The tribunal order had amended the condition, requiring that the applicant notify the respondent at least 48 hours before his son had access to premises in which the applicant's firearms were stored. An amended condition in this case requiring him to give the Firearms Registry 48 hours' notification of GNZ visiting, and that he relocates his firearms to an alternative safe storage location, would be an appropriate measure to ensure public safety.
[9]
Approach
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 a condition imposed by the Commissioner on a licence or permit (s 75(1)(b)). 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.
Section 19(1) of the Act prescribes that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
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.
Thus, in Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23] the tribunal noted that although there is no guidance in the legislation as to how discretions such as the one in s 19(1) should be exercised, those discretions should be exercised in such a way as to promote the principles and objects of the Act.
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]
Conduct of family members
Concerns for public safety in this matter do not arise from the conduct of the applicant himself, who has an unblemished record, but that of members of his family. It is well established, however, that there is no basis for differentiating between the conduct of an applicant himself or herself and that of another person that could impact on public safety in the context of a firearms licence (Tolley v Commissioner of Police [2006] NSWADT 149, [31]).
The issue before the tribunal is whether considerations of public interest, especially a concern for any risk to public safety, justify the imposition of the special condition and whether that condition is necessary for public safety and does not go further than is necessary for that purpose. The evidence advanced by the respondent in support of the condition consists largely of records held in the National Criminal Intelligence System (NCIS) and indicates, among other matters, that all three of the applicant's grandchildren have significant behavioural problems raising concerns about their ability to access weapons.
The applicant attributes their behavioural problems to their suffering from various degrees of autism which affect their actions. There is no expert professional evidence, written or oral, before the tribunal to indicate that all three are in fact autistic and what effect, if any, that condition has or might have on their conduct. As the applicant's testimony about the grandchildren's' autism was not challenged, however, it may be accepted as generally correct. It may be noted also that the NCIS records assume the children's autism.
[11]
GNZ
The first family member mentioned in the special condition is GNZ, aged 41, who is the applicant's son, the husband of GOC and the father of GPM (aged 16), GQA (aged 14) and GPB (aged 12). Concerns about his having access to firearms arose initially from the fact that his applications for a firearms licence were first refused on public interest grounds on 17 October 2019 (exhibit R2, pp 323 - 325) and again on 5 September 2023 (id., 336 - 337).
The 17 October 2019 refusal letter pointed out that on 15 April 2004 he was involved in a domestic incident with his flatmate at the time, during which he threatened to slit her throat. An interim apprehended violence order (IAVO) was subsequently issued against him, and later expired.
On 23 September 2004, the refusal letter continues, he was involved in a violent assault during which he used a wooden object to cause physical injuries to another person. After being arrested and taken into custody, he admitted attempting suicide in 1997 by placing a shotgun in his mouth and pulling the trigger, but the gun did not fire. After a further arrest in relation to the same assault on 25 September 2005, he said that he had attempted to take his own life by overdose in 1999 and that he suffered from recessive paranoid schizophrenia.
The police report (id., 10) relates that following a dispute over money the victim allegedly owed to him, GNZ used a wooden object similar to a small baseball back to strike the victim numerous times on the top of the head. The victim used his right arm in an attempt to block the blows. When the victim began bleeding profusely from his scalp wounds, GNZ fled. The victim suffered three deep lacerations to his head requiring stitches, as well as five or six welt marks, bruising to his right forearm and scratches to the back and side.
As a result of the assault, GNZ was convicted at Broken Hill Local Court on 10 September 2007 of assault occasioning actual bodily harm and sentenced to a period of two years' imprisonment, with a non-parole period of 3 months (id., 324). Previously, on 15 April 2004, following the dispute with his flatmate, in the course of which he had threatened to slit her throat, he had said "if you get your father, boyfriend or the cop involved I'll get the Mildura Boys on to you" (id., 40).
The 3 November 2023 letter affirming the refusal of his AB licence application also notes that on 15 May 2007 he pleaded guilty to 14 counts of recklessly making false statements to Centrelink. It was alleged that he had under-declared or failed to declare significant income, resulting in his receiving approximately $6600 in Newstart allowances (id., 340).
[12]
GOC
Aged 45, GOC is GNZ's wife and the mother of GQA, GPB and GPM. She has a lengthy NCIS record, but its contents describe her as either the victim of threats, abuse or violence by her sons, particularly GQA, or as attempting to calm the explosive situations that they generate. GOC lodges all the reports of domestic violence in the family. The respondent submits that there are probably others that she has not reported, but that is speculation.
The evidence shows no ground for believing that GOC presents any kind of threat to public safety, quite the opposite in fact. In my view there is no basis for naming her in the special condition and I so find.
[13]
GPM
GPM, aged 16, is the subject of one NCIS record, which relates to an incident at Mildura, Victoria, on 11 June 2022. Police were at the family residence in relation to a family violence incident between GPM's brother GQA and their mother. The report states that "While police were at the scene, [GPM] made an attempt to grab a police officer's firearm. [GPM] made no indication of going to grab the firearm prior to the attempted gun grab, but had expressed curiosity in police equipment through conversation. [GPM] is highly autistic and is drawn to touching and grabbing items and equipment that he finds new and interesting. Members should be aware of their equipment when dealing with [GPM] and their positioning" (exhibit R2, p 277].
The applicant disputed the correctness of that account, although he was not present at the time. He said that GPM is very inquisitive because of his autism and may only have been expressing interest in the item He said his wife GRC was there and that she did not see him attempting to seize the holstered gun and did not believe he had done so. As there is no evidence, oral or written, from GRC and the applicant's account is hearsay, the police record is the most reliable evidence about the incident.
The applicant described GPM as "a gentle giant" who hates violence and has been known to break up fights between others. The applicant also related an incident on an airline flight in which GPM had been able to help a man who was in a state of depression. His interest in the officer's gun on 11 June 2022 stemmed, the applicant said, from the way that video games had played on his mind, as they had on the minds of all three boys. They do not properly understand realities. Nevertheless, GPM is responsive and does not constitute a threat.
The incident described, though concerning, was an isolated occurrence which, as the report indicates, was motivated by intense curiosity and not by any intention to cause or threaten harm. There has been no repetition of similar conduct since then. Nor is there any record of other behaviour or utterances that might indicate the presence of a risk to public safety. On all the evidence I do not think GPM would present in a significant risk to public safety if the applicant were to have firearms in safe storage on the premises. I so find.
[14]
GPB
GPB, aged 12, features in the NCIS documents only as a person interacting with GQA or being bullied by him. He was implicitly covered by the statement in a Victoria Police report in February 2024 that "all children in the house have a fascination with weapons" (exhibit R2, p 100). It was not, however, suggested that he had himself participated in any untoward conduct, with weapons or otherwise, and the report notes in relation to all three grandchildren "nil criminal offences in relation to weapons".
The applicant in his evidence said that GPB is not violent, but when he is placed under pressure by GQA he can retaliate. Like the other children, he has come under the influence of video games and television, but presents no risk to the public, a conclusion with which I agree.
[15]
GQA
GQA, aged 14, is the middle child of the three GKU grandchildren. Mr Deards noted that the bulk of the respondent's concerns in this matter related to him, and he is the subject of a large number of NCIS reports. The applicant likewise acknowledged that GQA presented a problem and did not dispute the accuracy of the NCIS records relating to him.
On 5 February 2024, after a disagreement with his brothers, GQA choked his mother with both hands, making it difficult for her to breathe, held her against the refrigerator, seized a 5-inch silver chef knife and a fillet knife and threatened his mother, saying he would slash her throat (id., 90).
On 21 July 2023, GQA threw a PlayStation remote control at his mother, striking her on the head, became verbally abusive and began running around the house. When police were called they found him "in the backyard armed with two axes and a blowtorch". They noted that he "suffers from autism and oppositional defiant disorder (ODD)". He "responded well to calm verbal communication and dropped the weapons", being then taken to hospital for mental health intervention (id., 99).
On 13 June 2023, GQA was "acting out" and threatening his mother with multiple items around the household. He said he was going to kill his father using chloroform to put him to sleep, and was also threatening to harm himself and others by trying to set rabbit traps around the house and set them off. He said he wants to kill everyone because he hates everyone. "When police arrived, [GQA] was hiding behind the fridge throwing items off it and just generally being a brat". He was taken to child mental health by police and Mallee Family Care workers. The previous day he had attempted to hang himself with a rope (id., 102 - 103). The report noted that he had "a fixation on any weapons around the house and over the past years [GQA] has constantly threatened [his mother]".
On 29 September 2022, GQA choked and struck his mother and brother with a pipe. When police arrived he was armed with a knife and wrapped a cord around his neck, stating that he wanted to die. He calmed down and said "I wasn't going to kill anybody, just hurt them a little bit" (id., 108).
Police were again called to attend following an argument on 10 June 2022. They found GQA being "extremely erratic and threatening members with sticks and poles". The report stated that "The incident was a result of a mental health episode" and GQA had not been taking his medication (id., 121).
[16]
Evaluation
The ground on which the respondent relies is that it would be contrary to the public interest for the persons named in the s 19(1) special condition on the applicant's licence to reside at, or frequent, premises where the applicant's firearms are stored.
The "public interest" factor allows a consideration of issues going beyond the character of an applicant (or, in this case, the persons named in the special condition) 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 (including an application to vary a special condition) places decisive 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].
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].
[17]
Conclusion
The condition under review should be varied such that the applicant is prohibited from storing firearms, firearm parts and ammunition at any location where GNZ or GQA resides or frequents. The second part of the condition under review, which prohibits the applicant from handling or using firearms, or removing firearms, parts or ammunition from any safe storage facility in the presence of the persons named seems largely otiose given that the firearms will be stored away from the applicant's residence.
While in present circumstances the variations ordered may make only limited practical difference to the applicant's future arrangements, they will avoid giving the condition a wider scope than appears necessary for the protection of public safety, following the approach in Mulligan. The existing confidentiality orders are to be continued.
[18]
Orders
1. The decision under review is varied such that the condition is to be to the effect that firearms, firearm parts and ammunition are not to be stored at any location where GNZ or GQA resides or frequents.
2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (CAT Act) the surnames of the applicant and the persons named in the special condition under review are to be anonymized and are not to be disclosed.
3. Pursuant to s 64(1)(c) of the CAT Act, publication of the confidential material, of confidential exhibit CR4 and of matters contained in that material is prohibited.
4. Pursuant to s 64(1)(d) of the CAT Act disclosure of the confidential material, of confidential exhibit CR4 and of matters contained in that material is restricted to the respondent, the respondent's legal representatives and the tribunal.
5. Pursuant to s 64(1)(b) of the CAT Act, the publication and reporting of the confidential part of the hearing is prohibited.
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: 16 August 2024
Parties
Applicant/Plaintiff:
GKU
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Naming GOC and the three children in the special condition denied him and his wife the opportunity to provide family support to GOC and the children if needed while GNZ is away working in Western Australia. GNZ and his family only come to visit at Broken Hill three or four times a year.
In oral evidence in chief the applicant adopted exhibit A1 and stated that he is a retired accountant who formerly ran a service for disabled people. In retirement he has developed hobbies in drawing and painting. He said that GNZ's psychologist had said that boys do not mature until they are aged about 25. GNZ had gone through a bad period, including drug charges and a term of imprisonment. He had talked with his father when he had come out of jail and said that the three months he had served were the best thing that had ever happened to him and had saved his life.
Since then he had given no indication of any violence, nor had he had any links with the disreputable company who had got him into trouble previously. He was needed to help at the applicant's property from time to time and was no trouble at all. Now that he has a wife and three children he has grown up and is no longer a problem.
Twenty years ago, however, his conduct was bad, and he was threatened by gang members to make him engage in drug supply. Now he has some problems as a father. He has a direct manner.
GOC had no contact with firearms and would not know which end of a gun to hold. GPM is a gentle giant who suffers from autism but hates violence and breaks up fights. The police say that he reached for an officer's gun, but he did not believe that. GPM can get excited when he sees things that interest him. Like many children, he was influenced by video games that preyed on his mind, as they did on all of the three grandchildren. It means that he does not understand realities, but he is responsible and no threat. On an airline flight when he saw a man across the aisle who looked downcast, he crossed over the aisle and asked the man why he was so sad. The man opened up to him and by the end of the flight was in a much more positive mood. GPM has never been violent.
GQA has mental problems and is receiving care in Victoria for ADHD. When his father is away and he is off his medication, he can be violent.
The applicant said he keeps his keys on him and nobody knows where they are. GQA would not know where they are and the guns themselves are hidden. They have trigger locks on them and he keeps no ammunition on the premises. He agrees that GQA is a problem and there is a question mark about him, and he did not think he was being helped by the care he was receiving. He and his wife GRC keep him away from guns and they are on guard when he is there.
GPB, aged 12, is not violent, but does come under pressure from his elder brother GQA and can retaliate. He, too, is influenced by video games and television. The applicant said he himself is embarrassed by these proceedings and does not know why he is being penalized. He has the situation under control. While his guns are normally at home, they are not there when the children visit.
Cross-examined by Mr Deards, the applicant acknowledged that in his renewal application of May 2023 he had given as his reason for owning firearms his membership of the West Darling Outdoor Recreation and Hunting Club Inc. His membership of that club was the only reason he had given, but since then, a family member had purchased a property and he would from time to time help out in the control of ferals. He himself was not a primary producer.
He did not store firearms at his residence when the children were there, which happened only occasionally, and he had in fact moved them only two days ago. GOC and GNZ visit only about four times a year and had done so only once or twice this year. GNZ could come more frequently if he wanted to.
Asked about his letter to the Firearms Registry dated 14 December 2023 (exhibit R1, p 87) in which he had said that "GNZ will not have any access to my guns and has never asked for such in the past. In fact he's not shown or inclined [sic] to be interested in guns", he said that was still true. He agreed that GNZ had applied for a firearms licence in 2019 and again in 2023, but that was not because he was interested in guns, but for the sake of inheritance, as he could not inherit his father's guns if he had no licence.
When it was pointed out to him that GNZ had held a licence in the past and could reapply, he answered that he was not sure, as GNZ had gone through a "messy divorce" and his ex-wife had been "a narcissist". There was no impediment to GNZ reapplying, but he had no interest in doing so. He himself had not participated in any club shoots in 2023 or 2024, but that was because it had been too cold or too wet and at his age (80) he did not want to be lying on wet ground.
He agreed that GQA had problems, which he said stemmed from autism, which was often not understood. He accepted the police records as accurate, however. When GQA was at the house it was his practice to hide knives, as he and his wife were "on guard". They hid other weapons too. They took precautions to ensure that no "nasties" were accessible, for safety reasons. He would be concerned if GQA had access to guns, but he does not.
GPM was interested in almost everything and was very inquisitive because of his autism. As to grabbing the officer's gun, he had not been there, but his wife was and she did not see him grab the gun. All the grandchildren were on the autism spectrum. He disapproved of video games because of the amount of violence in them. GPM was interested only in the guns on television, and should not have access to them.
GQA tended to boss GPB, as all elder brothers do. It was normal in family relations. There were no problems between GPB and GQA when they visited together with their father. At their age they would not be visiting without one or both of their parents.
By way of re-examination, he said his suggestion that the condition should require him to move the firearms only when the children were present had been put forward by a police officer. In any event, the grandchildren did not know where the firearms were. GNZ was a reformed man and GOC was perfectly OK.
GQA was a problem, by reason of his mental illness. The care he was receiving in Victoria was not enough. Nevertheless, the guns were locked up and GQA did not know where they were. GPB was not inclined to be interested in guns and could be controlled. He was suffering from discrimination, and there was a wide spectrum of autism, but all was under control. He himself understands them and wanted them to be part of the family. GQA was under control when he was with his father, which was always the case when he was visiting. He agreed that the police reports were "not nice" but stressed that the grandchildren had no access to the guns. He had high security at home, with an 8-foot fence and several doors to negotiate. Many keys would be needed by anyone wishing to access his firearms.
By stating that she was not satisfied that he would diligently comply with the alternative safe storage condition that he proposed, the Commissioner implied that he would consciously allow GNZ, GOC or their children unauthorized access to his firearms. That inference was fanciful and quite frankly offensive. The Commissioner had no reasonable cause to believe that during visits by his son and his family he would not exercise continuous and responsible control over his firearms, including compliance with the safe storage requirements, and take all reasonable precautions to ensure that they did not come into the possession of his son, his wife, or his children. The decision-maker had to be objectively satisfied, from established facts that an applicant might not personally exercise continuous and responsible control over firearms.
The tribunal had so held in Meggit v Commissioner of Police [2022] NSWCATAD 353, [27], Griffin SM stating at [29] that "I have examined the confidential information. It does not rise above the level of speculative hearsay. I consider the risk it raises is theoretical. I am not satisfied there is reasonable cause to believe that Mr McGuire may take advantage of their domestic circumstances and that the Applicant may not personally exercise continuous and responsible control over her firearm".
It was noteworthy that despite the police having knowledge of GNZ's criminal record for over 20 years, the Commissioner had never raised concerns about him gaining unauthorized access to the applicant's firearms until imposing the special condition. If GNZ was indeed a public safety risk as purported, it was difficult to understand why a special condition was not imposed on the applicant's firearms licence when he was living at their home.
The Commissioner's special condition was unjustified and imposed an unnecessary burden, restricting the applicant's ability to freely participate in target shooting and recreational hunting. The applicant referred to Mulligan v Commissioner of Police [2020] NSWCATAD 272, where I had remarked at [65] that "restrictions imposed by a special condition should not go further than is required for the protection of public safety".
The amended special condition naming not only his son GNZ, but also his wife and children aged 15 years, 13 years and 11 years was not justified or proportional to any real threat posed by GOC or the children. There was virtually no risk that GOC or her three children could access his firearms when they came to visit him and his wife at Broken Hill. The special condition denies him and his wife the opportunity to provide family support to GOC and the children if it is needed while GNZ is away. At no stage had GNZ, GOC or their children ever attempted to access his firearms during family visits to their home.
In oral submissions the applicant contended that because of his autism, GPM had not attempted to grab the officer's gun, but was simply interested in it. GQA needed much mental health treatment and was a problem, but did not know where the gun safe was. GPB and GPM were not violent. He himself had always had guns and safety had been his number one concern. He had not joined club shoots lately because it shoots on a Sunday when he and his wife attend church, and he does not like to lie down to shoot, because of his age.
GOC presented no risk and if he knew GQA was coming for a visit him, he would simply move his firearms to another location. GPB and GPM were no problem, though GQA was a real concern. GNZ did not know that the applicant possessed guns, though he did know that he had done so in the past. He himself had done a great deal of volunteer work, including with the police.
On 2 December 2007 he sent a number of messages to his ex-partner's mobile saying goodbye and stating that "My will has been stated. It is detailed and exact and legal. You broke my heart once too often. You and it have a great life. I'll do all I can for who I want". When police spoke to him he denied sending the messages and any intention to commit suicide.
On 1 September 2021 he was charged and sentenced for theft, with no conviction recorded. It was alleged that until his departure in 2018, he had been the manager of the Bob Jane T-Mart in Mildura and that during his employment he had arranged for his vehicle to be fitted with new tyres but did not pay for them. He was sentenced to a $1000 fine and required to pay compensation for the tyres.
In his 13 July 2023 firearms licence application, he stated that he had been falsely accused of making threats 20 years ago, resulting in an IAVO being imposed on him. It was later dismissed by the court. Contrarily to records held by the police, he wrote, he had never attempted to take his life and had never suffered from psychological issues, such as recessive paranoid schizophrenia.
The respondent submitted that there were clearly grounds for concern about GNZ if he were to be where guns were stored. His record, and concerns about his mental health and possible involvement in drugs would be "part of the tapestry".
The applicant testified that when GNZ was released from jail after serving his three-month non-parole period on the AABH charge, he had spoken to his father and had said that the 3 months he had served was the best thing that had ever happened to him. Since then he had displayed no inclination towards violence and had severed all links with the bad company he had kept before. He was needed from time to time to help at the property and was no trouble at all.
He is now grown up and has a wife and three children, and is no longer a problem. In some cases his offences were 20 years ago. He had no interest in guns except in relation to the possibility of inheriting from his father. He now holds a responsible job at the mines in Kalgoorlie, where he works on a 12 days on, 12 days off, fly-in, fly-out basis.
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GNZ's serious offence of violence is now 20 years in the past. The unchallenged evidence that he now holds a responsible position working in the mines in Kalgoorlie, being flown home every 12 days, suggests that he is not a troublesome employee and that he has indeed matured to a degree. Mining companies are known to give high priority to safety.
Nevertheless, he has an offence of dishonesty recorded as recently as 2021 and there remains concern about his mental health. Despite his previous instances of suicidal ideation and an attempt, as well as the possibility that he may have had a diagnosis of schizophrenia, there is no expert psychological or psychiatric evidence about his mental health, In my view there are grounds for the conclusion that he should not live in, or frequent, premises where firearms are stored. I so find.
A few days earlier he had told police he has had suicidal thoughts for three years and thinks about killing himself every day. He also told police that he had Googled how to break the neck of a skinny person and repeatedly asked police to taser him. He had been collected from school by the welfare team after threatening suicide (id., 128).
On 6 June 2021, he left home following an incident, and police took him home, whereupon his belligerent behaviour escalated to the point that he attempted to punch and kick his mother and police, and used various items as weapons. He was restrained by physical force and an attempt was made to administer medication to regulate his behaviour (id., 131 - 132).
On 1 October 2021, GQA chased his brothers down the street with scissors. The brothers sought refuge at a neighbour's house. When police arrived they found him inside the house wielding a peeling knife and holding it to his neck, threatening to kill himself. Police "extracted [GQA] from the house without incident and placed him in handcuffs. [GQA] had a breakdown and made threats to police and stated that he wanted to die. [He] was conveyed to hospital for a psychiatric assessment" (id., 134). Previously, or 14 September, he had come at police with a handful of kitchen knives, a pole and a shovel in a threatening manner. He bit his own arm and his mother's ankle in an attempt to be tased (id., 137).
Again, on 15 August 2021 he attempted to hit his mother with a meat cleaver and a metal knife-sharpening rod, threatening to kill her. When police arrived, GQA repeatedly said he wanted to die and was swinging the knife sharpener around. He then ran at police with the knife sharpener and was secured for safety reasons. The report continued, "This is the second incident in three months where [GQA] has armed himself with a knife in the presence of [his mother] and her other children". His mother "feels she is not able to control [him] and is in fear of him" (id., 140 - 141). After he had been assessed by mental health staff, GOC told them that she was no longer in fear of him and was happy to have him home. She was not supportive of any intervention order or for GQA to be processed criminally (ibid.).
On 26 May 2021, GQA was armed with a meat cleaver and told police that he wanted to kill his mother and to kill everyone. His mother explained to him the effects of OC (capsicum) spray, which heightened his state and he raised the knife above his head towards police, who had to draw a taser and make a warning arc with it, telling him to drop his weapons, which he did. He then proceeded to punch himself in the head and police had to restrain him. From there on he was calm and cooperative (id., 144 - 145).
This record of threatening self-harm at home and at school, and of violence with weapons towards his mother and others, makes a virtually unchallengeable case for the proposition that GQA should not be in premises where firearms are stored. I accept that the applicant keeps the keeps the safe storage keys on his person and does not tell anyone where the keys or the safes are located, but GQA is violent with weapons and might be able to obtain the keys. As the respondent also pointed out, GQA could grow to a size and strength (perhaps a "giant", as the applicant called GPM) that would enable him forcibly to obtain the keys from his grandfather.
None of the persons listed in the respondent's special condition is applying for a firearms licence or permit and consequently they do not need to meet the "fit and proper person" test prescribed for licence applicants. The bar is lower, the test being whether they represent what the tribunal in Webb called "a real and appreciable risk" to public safety.
GNZGKU has a significant criminal history which led to his being refused a New South Wales firearms licence in 2019 and again in 2023. It includes a serious offence of violence that led to his being sentenced on 13 March 2006 to a two-year term of imprisonment for assault occasioning actual bodily harm. On 15 May 2007 he pleaded guilty to 14 counts of recklessly making false statements to Centrelink resulting in his receiving approximately $6600 in Newstart allowances. Also in 2007 he sent text messages to his ex-partner indicating suicidal intention.
The applicant's evidence was that GNZ's behaviour was transformed for the better by the 3-month non-parole period he served on the assault charge. That was 20 years ago and he is now married with three children, holding a responsible position in the mines at Kalgoorlie. Nevertheless, on 1 September 2021 he was sentenced for the offence of theft, with no conviction recorded, for appropriating a set of tyres from his then employer, Bob Jane T-Mart. But there have been no charges involving violence since 2004.
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The open and confidential evidence shows, on balance, that concerns about GNZ's conduct lead to the conclusion that he represents a real and appreciable risk to public safety and a condition that firearms should not be stored in a location where he resides or frequents is appropriate, and I so find. The legislation provides no guidance on when a person may be said to "frequent" a particular location, and there were no submissions on the point. But the applicant's evidence was that GNZ visited the family on average four times a year, and that would appear to be sufficient.
There is no evidence to suggest that GOC would endanger public safety if the applicant stored his firearms at home. As to GPM, whatever exactly he did in relation to the officer's holstered gun, it was an isolated event probably motivated by intense curiosity rather than malevolent intent and he does not appear to present a risk either. GPB has also displayed a fascination with weapons, but there have been no dangerous overt acts or utterances that would warrant his naming in the special condition.
Mr Deards acknowledged that the bulk of the Commissioner's concern was about GQA. So much was abundantly clear from the evidence outlined above. The applicant did not deny that GQA presented a serious problem, but submitted that his firearms are kept in a safe under multiple locks to which he carries the keys on his person and that he and his wife are "on guard" whenever GQA comes visiting, hiding weapons and other "nasties" that he could use if he became violent.
The applicant's unblemished record shows that he is genuinely committed to the safe handling and storage of firearms and would conscientiously guard against any danger of which he was aware. Nevertheless, for the reasons outlined above, GQA's presence in premises where firearms are stored currently would represent a real and appreciable risk to public safety and the public interest warranting the imposition of a s 19(1) condition, and I so find.
The applicant proposed an alternative special condition requiring him temporarily to relocate his firearms to a different safe storage location whenever persons found to present a risk were visiting. In that connexion he relied on Schettler, in which the tribunal considered that it would be reasonable to require the applicant in that case to notify the Commissioner when his son was to be released from prison on parole (following a sentence for certain serious offences) if he proposed to live with the applicant, so that a further assessment could be made.
But that imposed condition was to allow for a reassessment to occur at a particular point of time following a one-off event, not to facilitate a temporary alternative safe storage address from time to time. While the applicant's assurance that he would conscientiously comply with such a condition can be accepted, for the reasons already given that intention might not be sufficient. Further, it is not usually thought legally appropriate to make orders or impose conditions compliance with which cannot readily be supervised.
The applicant is not a primary producer, although he does periodically help in the control of ferals and other vermin on a family property. In his evidence he advanced no reason why he needed to keep his firearms in safe storage at his residence rather than in some other accessible location. Indeed, at the time of the hearing he said he had left his firearms in safe storage at a friend's house two days previously.