GKU v Commissioner of Police, New South Wales Police Force

ns named in the condition under review are to be anonymized and not to be disclosed.

(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) 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) Pursuant to s 64(1)(b) of the CAT Act, the publication and reporting of the confidential part of the hearing is prohibited.

Reasons for decision

1. 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.
2. 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).
3. 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).
4. 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).
5. 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.
6. 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.

Applicable legislation

1. 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.
2. 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.

The evidence

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Applicant's submissions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Approach

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Conduct of family members

1. 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]).
2. 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.
3. 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.

GNZ

1. 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).
2. 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.
3. 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.
4. 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.
5. 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).
6. 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).

GOC

1. 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.
2. 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.

GPM

1. 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].
2. 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.
3. 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.
4. 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.

GPB

1. 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".
2. 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.

GQA

1. 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.
2. 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).
3. 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).
4. 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]".
5. 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).
6. 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).

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].

Conclusion

1. 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.
2. 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.

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