GPZ v Commissioner of Police, NSW Police Force

GPZ v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 385 - NSWCATAD 2024 case summary — Zoe

[5]

Legal Context

The Firearms Act 1996 (NSW) regulates the possession and use of firearms in New South Wales. The underlying principles are set out in the Firearms Act, s 3(1) and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, …
A person must not possess or use a firearm unless authorised by permit or licence; Firearms Act, s 7A.
A person may apply to this Tribunal for administrative review of the Commissioner's decision to revoke a firearms licence pursuant to the Firearms Act, s 75(1)(c) and the Administrative Decisions Review Act 1997 (NSW), s 9.
In conducting the review, the Tribunal must consider the correct and preferable decision regarding the material before it, including the facts and applicable law; Administrative Decisions Review Act, s 63. The proceedings are not adversarial; there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
The Tribunal, in determining applications such as these, is required to exercise the statutory discretion in a manner that promotes the principles of the Firearms Act; Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
In Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46], the Tribunal considered, having regard to the underlying principles of the Firearms Act, s 3(1), that the primary consideration in relation to public interest must be public safety. An applicant's interest in obtaining or retaining a firearms licence is subordinate to that consideration; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal stated: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.'
The views expressed in Ward have been adopted in numerous decisions of this Tribunal. Such test cannot be applied mechanistically, lest it give rise to an insurmountable burden upon the part of applicants for firearms licences; Martin at [66]. Instead, careful consideration of the evidence before the Tribunal is required where only real and appreciable risks should be taken into account; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Cruickshank v Commissioner of Police [2022] NSWCATAD 115 [13] - [20]. In the course of such consideration, the text of the provision is prime and should not be substituted for gloss or interpretation; AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [7].
The Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence; Firearms Act, s 24(2)(a). That includes consideration of whether the person is fit and proper; Firearms Act, s 11(3) and whether it would be contrary to the public interest; Firearms Act, s 11(7).
The Commissioner may revoke a licence where she is of the opinion that the licensee is no longer a fit and proper person to hold a licence; Firearms Act, s 24(2)(c). However, in this case, and with respect to the factual findings set out below, the Commissioner does not argue that the Applicant is no longer a fit and proper person. Instead, the Commissioner relies solely upon the Firearms Act, s 24(2)(d) and the Firearms Regulation 2017, reg 20, which provides that the Commissioner may revoke a firearms licence where she is satisfied that it is no longer in the public interest for a person to hold a firearms licence.

[6]

Public Interest

In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the 'public interest' was an inherently broad concept providing the decision maker with the ability to consider matters where character was either not relevant, or where the objection to character would not be sufficient, alone, to warrant refusal or revocation of a firearms licence. The appeal panel expressed similar consideration regarding the breadth of the term public interest in Constantin v Commissioner of Police [2013] NSWATAP 16.
The Appeal Panel's statements in Toleafoa and Constantin reflect the statement in Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 61 IR 455 at 479-480 per Wilcox CJ and Keely J with whom Moore J agreed, to which both parties refer in submissions that: The purpose of the reference to ''public interest'' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the ''scope and purpose'' of the legislation.
The discretion allowed under the relevant provisions of the Firearms Act must be exercised to promote the objects of the firearms legislation; Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [35], Cusumano at [13].
Consideration of what is in the 'public interest' is confined to the subject matter, scope and purpose of the legislation; Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at [31], citing O'Sullivan v Farrer (1989) 168 CLR 210, [13].
Public interest considerations are extremely broad and may encompass considerations of public protection, safety and confidence in the administration of firearms licencing. Indeed, these are matters expressly identified in Constantin at [33].
The licensing scheme under the Firearms Act is directed toward maintaining public safety. The Tribunal is required to assess the risks in the matters that come before it, which are consistent with the objects of the Firearms Act.
In terms of domestic violence, the Respondent, in her submissions, refers the Tribunal to Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 at [75], where the Appeal Panel noted: … It has been repeatedly stated that 'in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence where there is no misuse of a firearm': see Greenfell v Commissioner of Police at paragraph [103] cited in Hariri v Commissioner of Police [2022] NSWCATAD 5 at [60].
The Respondent also refers the Tribunal to the recent decision of Lawson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 308. In that case, the applicant had no criminal record but a history of interactions with police in the context of domestic violence. In Lawson, the Tribunal found, uncontroversially, that the Applicant's lack of self-control toward his partner made him unsuitable to hold a firearms licence.
What those decisions point to is the fact that domestic violence may exist below reportable levels or be under-reported for a range of reasons. Moreover, the absence of firearms charges cannot assuage the Tribunal or distract it from applying the statutory considerations required under the Firearms Act concerning, relevantly to this case, whether it is in the public interest for the Applicant to have a firearms licence.

[11]

The May 2022 Incident

It was not in dispute between the parties that, in early May 2022, the Applicant and his then-wife were involved in a dispute at their home and that police attended their home in the early hours of the morning. Arising from that attendance, the Applicant was charged with two offences; the first was a charge of stalk or intimidating - with the intention to cause fear of physical or mental harm, and the second was common assault, domestic violence related. He was subject to an interim apprehended violence order. The Applicant's firearms licence was suspended in connection with the same incident.
The Applicant, in giving oral evidence, told the Tribunal that his wife had gone over to a neighbour's house, leaving him to care for the kids. He was unhappy about being left, and he did not get on well with the neighbour who was hosting his wife. His then-wife had stayed out late, so he "sent her an angry text and then locked up the house for the night". He accepted that when his then-wife tried to return to their home late in the evening, he had told her from inside the house that she was to "go back across the street. Otherwise I'll skull drag you across" and that he had not allowed her back in the house. There was then a great deal of shouting by the two of them, which caused the police to be called.
Nonetheless, a year later, on 6 April 2023, the Commissioner revoked the Applicant's firearms licence. It appears that the revocation occurred at a time when the charges against the Applicant were still pending
Subsequently, and at least by November 2023, the charges against the Applicant were dismissed, and the apprehended violence order was withdrawn.
Regarding the allegations underpinning the charge, it is unsurprising that the charges were dismissed. It is more surprising that charges were laid at all. At the same time, the Applicant may have said extremely hurtful and foolish things to his then-wife and have acted churlishly and childishly; his behaviour does rise to an assault or any of the elements of stalk or intimidate.

[13]

Daughter's history of self-harm

There were four incidents where the Applicant's daughter was reported as having undertaken acts of self-harm: 1. The first occurred in March 2021 and involved police reportedly looking for the Applicant's daughter. The Applicant, himself, located his daughter and disclosed to police that she had tried to harm herself by overdosing on medication prescribed to her. The Applicant's daughter was not physically harmed but was admitted as an involuntary patient to a mental health unit of a hospital but was released the next day. In his evidence to the Tribunal, the Applicant said that he had found his daughter and that she was distraught over the breakup with her then-partner. He said he found her and popped her in the car but was concerned for her safety and called the police. 2. The second incident occurred the next day; the Applicant's daughter had again expressed a wish to end her life and had cut her wrist. She was again admitted to a mental health unit as an involuntary patient in order to receive treatment. The Applicant stated that he was unaware of this incident. 3. The third occurred in November 2021; the Applicant's daughter sent a number of troubling text messages to family members suggesting she was considering ending her life. She was located and admitted once again to a mental health unit as an involuntary patient. The Applicant stated that he was unaware of this incident, and having regard to the messages sent before the Tribunal, it would seem that the Applicant's daughter only sent messages to her mother and her brother. 4. The fourth and most recent incident occurred in March 2024 and involved the Applicant's daughter again sending troubling text messages to family members suggesting she was considering ending her life. On that occasion, she was located and admitted once again to a mental health unit as an involuntary patient. The Applicant said he knew about this incident because he had received one of the text messages and that it occurred in the context of his daughter's pregnancy and a relationship breakdown with her current partner.
The Applicant's evidence was that he did not consider his daughter to have any mental illness. Instead, he said that he thought it had more to do with her personality, which he described as being volatile like his ex-wife and that this personality trait caused her to react or overreact when faced with interpersonal problems. The Applicant is not trained in mental health issues, and I accept that his assessment of his daughter's state of mind may be incorrect, or he may have minimised the seriousness of each incident.
Nonetheless, the evidence concerning his conduct establishes that 1. the Applicant's daughter does not live with the Applicant and has not lived at the same address as the Applicant since October 2022; 2. the Applicant has tried to assist his daughter, who has struggled over the years with significant, albeit episodic, mental illness; and 3. the Applicant's daughter has never sought to use firearms or ideated about the use of firearms when she is suicidal.
With regard to the above, I am satisfied that the state of the Applicant's daughter's mental health is not a matter which relevantly informs the consideration of whether it is contrary to the public interest to grant the Applicant a firearms licence

[15]

Ex-wife's history of self-harm

In August 2022, the Applicant's ex-wife was reported as a missing person. It appears that she left a suicide note on the pillow of her older son's bed. She was missing for about two hours before being found by the police sitting in her car close to the Gap near Watsons Bay, which is, unfortunately, an area well-known and oft-used by people intending to take their own lives. The Applicant's ex-wife was taken by police to a mental health unit and admitted for her safety and treatment. She was released from the mental health unit the following day.
In the COPS event report, initiated by the Applicant's eldest son, the Police who refer to the Applicant's ex-wife as the MP - meaning missing person, note: The MP recently had a family breakdown and was involved in DV incidents. As a result the majority of the family unit have moved out of the home and the MP now resides with one of her children only [the Applicant's eldest son]
There are a couple of things to note here. Firstly, the Applicant had moved out of the marital home. Secondly, the Applicant's children, save for his older son, had also removed themselves from the Applicant's ex-wife. Thirdly, the Police refer to "DV incidents" but do not indicate whether the Applicant's ex-wife was an aggressor or victim in those incidents.
I note that a day after being released from the hospital, the Applicant's former wife went to a police station to report that the Applicant had been sending her text messages that were "unrelated to the kids" and that she felt "degraded and worthless" as a result of those interactions. The Applicant's ex-wife also stated that the Applicant was jealous of a friendship she had struck up with a neighbour.
Apart from noting the proximity of dates, I cannot make any definitive findings about the report because there was no evidence before me to explain what the report meant or whether it was relevant to matters I needed to consider. Equally, I declined to admit a statement signed by the Applicant's ex-wife, in which she supports the Applicant's application for a firearms licence, because I considered such a statement to be unreliable and the statement maker was not available to be cross-examined.

[18]

Other incidents - the facts of which are disputed

It also appeared to be beyond dispute that the Applicant has, in the last 35 years, come to the attention of the Police on six occasions in the context of domestic and other disputes, in addition to the May 2022 incident. However, the nature, context, and seriousness of those incidents are disputed by the Applicant.
Those incidents were: 1. In March 1997, the Applicant was alleged to have pushed his wife. Police attended the Applicant's home, where his wife expressed fears for her safety, and he was made the subject of an apprehended violence order, and his firearms licence was suspended. The firearms licence suspension was for three weeks. 2. In September 1998, the Applicant's former wife called the Police. However, when the Police arrived at the home, no one was there, and the Applicant's former wife later confirmed she did not want further police involvement. 3. On 12 December 2000, the Commissioner alleges that the Applicant made threats to a person over the telephone. The Applicant denies he did any such thing. In his oral evidence to the Tribunal, the Applicant explained that, despite the redactions to the COPS report, the incident arose because an estranged sibling had contacted him. The Applicant explained that his relationship with this sibling was non-existent - they had not spoken for over a decade and only saw each other at funerals. I accept that he may well have been upset and told someone that he was angry about his contact details being given to this sibling. However, I also accept the Applicant's account, which appeared more realistic and consistent than the COPS event report, that he did not threaten to harm anyone. Had, in fact, the Police considered a threat took place, then I would have expected the Applicant to have been charged accordingly. He was not. 4. The Respondent submits that, on 27 December 2012, the Applicant is alleged to have stalked and intimated a person. However, that interpretation is somewhat undermined when it becomes clear, even on the Commissioner's account, that the Applicant had been called by his then-wife to try and fetch his distressed daughter in the course of ending her relationship with her then-boyfriend. It also appears that it was the Applicant's former wife who had been making threatening statements to the boyfriend. In his oral evidence, the Applicant stated that he had seen his daughter in a distressed state behind the wheel of a car, and the boyfriend had run off down the road (presumably after being verbally abused by the Applicant's former wife). The Applicant told the Tribunal that he had sworn at his daughter to make her get out of the driver's seat of the car. I infer that he also may have raised his voice. He then got into the car with his daughter and drove the car down the road in the same direction as the boyfriend had been running because, he explained, that was where his own car was parked, and he wanted to get his daughter back home. The Applicant was arrested but not charged. The event was unfortunate, but I am satisfied with the Applicant's explanation for his conduct - he had come to assist his distressed daughter during a situation of heightened emotion. I am not satisfied that the Applicant drove a car dangerously or directed it at anyone. I do not find that the Applicant's conduct was violent or particularly dangerous - had there been sufficient evidence of criminal conduct, I am confident the Police would have laid charges (which they did not). 5. On 31 October 2016, the Applicant and his wife had a verbal fight at home. A neighbour called the Police because they were concerned, and thus, a report was prepared. However, it is surprising that this incident was a matter worthy of the Commissioner's attention in the context of the present proceedings. It does not disclose any acts of violence; it does not show any misuse of firearms. The COPS event report expressly notes no injury, no damage to property, no fears expressed or held by the police, no firearms or dangerous weapons, and no indication of alcohol or other drug use. With regard to the COPS description of the incident, which I extract in its entirety below, I have concluded that this incident was trivial: Both persons named were involved in an argument. It is unknown what the argument was about and they refused to tell police any more. The argument was heard by a neighbour who contacted police. A short time later police arrived and spoke to both persons named and they both admitted arguing. No further police action. 1. On 4 April 2019, the Applicant's then-wife went to the home of a family whose child was in the same school as one of the Applicant's children. From the police report, it seems the Applicant's then-wife had gone over to the house to confront the mother of the child about an incident that occurred at a local football match. When the Applicant's then-wife knocked on the door, the mother would not come out, and the man living there told her to go away. The Applicant's then-wife had the Applicant come to the house with her, and there was some argument between the Applicant and the man at the property, which either resulted in the Applicant putting the man into a headlock or the man kicking the Applicant in the leg before the Applicant and his then-wife went away. After all this occurred, everyone called the police. The Applicant explained to the Tribunal that the incident had occurred because his child was being bullied at school, and he had been dragged into going over by his then-wife, and then the confrontation got out of hand. The Applicant denied hitting or getting physical with the father. That is consistent with what he told police. I am not satisfied that the Applicant was engaged in criminal activity, and I cannot determine whether he acted violently. My determination cannot be any better than that of the police who attended at the time. The COPS event report records the police investigation in the following terms: Police attended and spoke to all parties involved. All the versions provided were similar, however the [man] alleges he was put in a headlock by [the Applicant] and [the Applicant] alleges he was kicked in the right leg by the [man]. Police were unable to determine who assaulted who first, however explained to [the Applicant and his then-wife] they should have never gone to the property of the [man] especially after they had been asked to leave. Police directed both parties to stay away from each other and if they had an issue with one another, to contact police. Police also explained there would be a record made, to which all parties were pleased with. 1. The feature of the incidents in April 2019 and October 2016 is that the Applicant appears to have been brought into a situation of conflict by the actions of his family members. The Applicant appears to have been placed in a position where he was expected to resolve conflicts or deal with the fall-out of conflicts that he did not start. 2. What is also common to all of the incidents is the absence of any use of firearms or, in circumstances where I do not accept that the Applicant made threats to shoot anyone, an absence of any threats to use his firearm.

[19]

Driving Record

The Respondent submits that the Applicant's driving record should be taken into account because it demonstrates a failure to comply with regulatory schemes.
While an applicant's driving record is typically submitted to support a finding that the person is not fit and proper to hold a firearms licence, I accept that it is also relevant to whether it is in the public interest for an applicant to hold a firearms licence.
The Respondent submits, and it is not in question, that, between 1984 and 1995, the Applicant was fined on five separate occasions for speeding and that his speeding offences were more severe each time. The Respondent also submits, and again, it is not disputed, that the Applicant was issued with a speeding fine in 2019 after being issued with a Class R provisional permit (which permits him to ride a motorcycle or scooter) two years earlier.
The Applicant's traffic offence history shows that the speeding offences took place in the period between 1984 and 1995. With regard to the Applicant's age, this was the first ten years of driving. His driving offences at that time reflect conduct that was lamentably common among young or inexperienced drivers of that period. Consideration of these offences does not assist the Tribunals in assessing the Applicant's current attitude towards public safety.
The more recent traffic offence history is more relevant to such an assessment. The Applicant has had one speeding offence.
While speeding and other traffic offences may indicate a lack of proper regard for the safety of others, and this can be a matter worthy of consideration: Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [75]; I do not regard the Applicant's offending as being as frequent or as severe to place him at the same level as the applicants in Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273, or Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145, or, for that matter, the applicants in El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103, Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 or Tannous v Commissioner of Police [2011] NSWADT 116. The applicants in those cases, in addition to lengthy serious histories of traffic offences, had criminal convictions or were charged with criminal conduct, which reinforced the findings that the applicants in those cases had little regard for legislative and regulatory schemes aimed at ensuring public safety.
Having regard to the nature, seriousness and extent of the Applicant's traffic offences, I do not consider his history of traffic offences alone leads to a finding that the Applicant has demonstrated a lack of proper regard for the safety of others.

[20]

Consideration

The Respondent's submission, in relation to the matters concerning the Applicant's former wife, was that the Tribunal would not be satisfied that it was in the public interest to grant a firearms licence to the Applicant because of the high levels of conflict and volatility in his family life. That is a logical submission, but I do not accept it in circumstances where the Applicant has made deliberate and rational changes to his personal life, including leaving the relationship and moving out of home and where the Applicant's ex-wife is the subject of an AVO against her for the Applicant's protection. For more abundant caution, noting that the Tribunal must be satisfied there is virtually no risk to public safety, and noting that the Applicant by his representative indicated a willingness to comply with any conditions on his firearms licence, I will order that as a condition of his firearms licence; the Applicant will not be allowed to have his former wife reside at, or visit, the place where the Applicant stores or uses his firearms. This means that the Applicant will not be allowed to have his former wife stay or visit the residence where the Applicant has his firearms stored. This may impose some difficulty on the Applicant when handing over the care of his younger son, but that is not a matter the Tribunal can or should be concerned with.
I am satisfied that, though the Applicant has demonstrated that he is an involved father, there is no likelihood that his older son will be living with him or seeking to obtain firearms from him. For more abundant caution, noting that the Tribunal must be satisfied there is virtually no risk to public safety, and noting that the Applicant by his representative indicated a willingness to comply with any conditions on his firearms licence, I will order that as a condition of his firearms licence; the Applicant will not be allowed to have his older son reside at or visit the place where the Applicant stores or uses his firearms. This means that the Applicant will not be allowed to take his older son on hunting trips or stay or visit the residence where the Applicant has his firearms stored.
I am satisfied too that, with respect to his younger daughter, there is virtually no risk of harm arising to her or by her should the Applicant be granted a firearms licence. For the same reason as I am imposing a condition on the Applicant's licence with respect to his older son, and again noting that the Applicant by his representative indicated a willingness to comply with any conditions on his firearms licence, I will order that as a condition of his firearms licence; the Applicant will not be allowed to have his younger daughter reside at or visit the place where the Applicant stores or uses his firearms. I doubt it is necessary to state, given she is currently in the care of a young baby, that the condition will also mean the Applicant cannot take his younger daughter on hunting trips.

[23]

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 17 December 2024

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Judgment (23 paragraphs)

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Legislation Cited (2)

Cases Cited (15)