Hack v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-03-29

Background

The Applicant, Don Hack, has held a Category AB firearms licence for some years. His most recent firearms licence was issued on 22 October 2016 and was due to expire on 22 October 2021.
On 13 February 2020 the Applicant's licence was suspended and on 1 November 2020 the Respondent decided to revoke the licence. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.

The law in relation to revocation of licences

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (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 , ...
Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
A licence must not be issued to a person who has within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations: s 11(5)(b) of the Act. Clause 5(1)(f) of the Firearms Regulation 2017 (Regulation) provides that a prescribed offence includes an offence involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included an intensive correction order imposed in NSW: see cl 5(1A) of the Regulation.

Evidence

In addition to the s 58 documents, I had before me a series of photographs of the Applicant at a bank between 12 November and 19 December 2019 and a USB stick containing the video of the police interview with the Applicant on 30 January 2020. The Respondent also provided detailed submissions.
Despite Orders being made by the Tribunal that the Applicant's evidence and submissions were to be filed by 16 February 2021, the Applicant did not provide any material to the Tribunal. The Respondent's solicitor wrote to the Applicant on a number of occasions reminding him that his evidence and submissions had not been filed. Despite promises to supply his material, it was not until the afternoon of the day before the hearing that the Applicant provided the Respondent with his short submissions. The Respondent forwarded a copy to the Tribunal. Contact could not be made with the Applicant at the time for the hearing. Further attempts were made to contact the Applicant and telephone messages were left on the his phone. Given that the Applicant had supplied some submissions, I decided to deal with the matter on the evidence before me.
Section 63 of the Administrative Decisions Review Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]- [34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act.

What led to the revocation of the Applicant's licence?

There was no dispute about the facts that gave rise to the revocation. The Applicant had been employed for 6-7 years to carry out maintenance and handyman duties at a nursing home in Orange. While conducting his duties, the Applicant obtained six cheques from the cheque book of an 83 year old resident of the nursing home. He filled in the cheques for different sums and on six different occasions between 12 November 2019 to 19 December 2019, attended a bank in Orange and on each occasion produced one of the cheques. On five occasions after each cheque was deposited, the Applicant attended the bank and withdrew cash in the same amount of the cheques. On the sixth occasion the cheque was cancelled by bank staff.
When interviewed by Police the Applicant said he obtained the blank cheques from another employee of the nursing home and that they had already been signed (or forged) when he got them. The Applicant knew that the cheques were stolen from an elderly resident of the nursing home and he stated that he gave half of the money to the person who had stolen the cheques. When Police spoke to that person, he denied any involvement in the plan as suggested by the Applicant. The Applicant when interviewed by the Police, offered no reason for his involvement in the theft.
On 3 July 2020, the Applicant was convicted of eleven offences in Orange Local Court - five of the offences were for dishonestly obtain financial advantage or cause financial disadvantage by deception under s 192E(1)(b) Crimes Act 1900, five offences were for make false document with the intention that the person or another will use it because of its being accepted as genuine, to obtain financial advantage or cause any financial disadvantage under s 253(b)(ii) of the Crimes Act 1900, and one offence was for the use of a false document, knowing that it is false, with the intention of because of its being accepted as genuine, obtaining any financial advantage or causing any financial disadvantage under s 254(b)(ii) of the Crimes Act 1900. The Applicant was sentenced to a nine-month intensive corrections order (commencing on 3 July 2020 and concluding on 2 April 2021), 75 hours of community service work, and ordered to pay $10,200 00 to the victim..

CONSIDERATION

Had the Applicant been applying for a firearms licence following his conviction it would have been mandatory that such an application be refused: s 11(5)(b) of the Act and cl 5(1)(f) of the Regulation. However, the power to revoke a licence following a conviction is not mandatory: s 24(2)(a) of the Act. In Kalinic v Commissioner of Police [2006] NSWADT 227 (Kalinic) JM Montgomery, after considering Maloney v Commissioner of Police, NSW Police (22 November 2004 unreported) (Maloney) and Botros v Commissioner of Police, NSW Police Service [2000] NSWADT 6, said at [23], that it would be anomalous if a conviction, after a licence has been granted, is treated totally differently to a conviction before a licence application. In general, I agree with this approach: see Parisi v Commissioner of Police, NSW Police Force [2018] NSWCATAD 155.
In the context of a revocation under s 24(2)(a) of the Act in Maloney JM Higgins considered that it only in special or exceptional circumstances should the discretion not to revoke the licence be exercised. I turned then to consider if the Applicant's circumstances could be said to be special or exceptional.
In his submissions the Applicant wrote that he had used firearms for over 20 years and I accept that he has been a firearms licence holder for some years. He does not appear to have come to the attention of Police during that time, other than in relation to the matters that gave rise to the revocation. He wrote that he has worked on his parents' farm for "19 yrs full time", although this appears to be inconsistent with what he told Police, namely that he had worked full time at the nursing home for 6-7 years. He wrote he had used guns to put down sick stock and had engaged in the control of feral animals such as foxes, rabbits, feral cats and wild dogs. He wrote of how much he enjoys hunting or target shooting at the rifle range; he has been missing his favourite pastime and would like his licence returned.
Recently, in Easey v Commissioner of Police [2020] NSWCATAD 319 (Easey) the applicant had given clear evidence of the disruption to his farming activities caused by feral pigs; and his attempts at various other alternatives to shooting vermin - all without success. I considered that the applicant's circumstances in that matter went beyond the basic desire to control feral animals, and exercised the discretion in s 24(2)(a) of the Act in the applicant's favour, noting that, in effect this provided a temporary reprieve from the application of s 11(5)(b) of the Act when his licence was for renewal in a few months hence.
Here, however, the Applicant had indicated only that he had used firearms in the course of his work at his parents' property but there was no evidence that the role of vermin control was exclusively his or that options for the control of feral animals were limited: cf Easey. His primary basis for wanting the return of his licence was to resume his preferred pastime.
I do not consider that the circumstances of the Applicant in this matter are sufficiently special or exceptional such that the discretion in s 24(2)(a) of the Act should be exercised in his favour.

The public interest

The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Applicant's interest in holding a firearms licence is, primarily for enjoyment of shooting, although he had engaged in the control of feral animals on his parents' property. Private interests, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23]. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, 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, at [64] - [66].
The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Respondent contended that it would not be in the public interest for the Applicant to continue to hold a firearms licence and referred to the gravity of the Applicant's offences which are prescribed as giving rise to mandatory refusal thus demonstrated that the Legislature considered that persons who commit such offences are not suitable to hold firearms licences. The offences, I have already held, suffice to justify licence revocation, which carries with it the 10-year disqualification period. On the other hand, in this matter, there was no evidence of any adverse firearms history, nor of any offences other than those that gave rise to the revocation. It does not appear that the Applicant would present any significant risk to public safety, as understood in cases such as Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32].
On balance, I consider the evidence does not warrant a finding that it would be contrary to the public interest for the Applicant to hold a firearms licence. However, as I have already found that there is insufficient evidence to exercise the Tribunal's discretion in favour of non-revocation because of the Applicant's conviction for the multiple fraud offences, the decision under review must be affirmed.
I observe that if the Applicant applies for a fresh firearms licence it will be refused, as he has been convicted of a prescribed offence; the refusal is mandatory.

DECISION 1. The decision under review is affirmed.

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: 07 April 2021

At a glance

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Judgment (8 paragraphs)

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Cases Cited (6)

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