The Applicant's conduct on the night of 5 December 2019
The following facts are uncontested. They are substantiated by the police statements, notebooks and bodycam recordings, contemporaneous witness accounts, and the Applicant's own testimony.
1. On the night of 5 December 2019, the Applicant went out with his friend Mitch for drinks. They started at the Crows Nest Hotel, proceeded on to Minsky's cocktail lounge in Cremorne, and then walked down the north side of Military Road in Mosman. They had consumed several schooners of beer.
2. At around 11:40pm, the Applicant and his friend were outside the surf store "Surfection" at 522 Military Road, Mosman. Mr Hatton used to work at Surfection about 3 years prior to the event in question. The owner of the shop, Mr Julian Taylor, heard a commotion out the front of the shop and observed two males staggering around out the front of his shop. At some point he saw Mr Hatton strike an Australia Post mailbox.
3. Mr Taylor yelled out to Mr Hatton "what the fuck are you doing?" and Mr Hatton ran past him down the street and into a laneway behind the surf shop. Mr Taylor and his colleague Max followed Mr Hatton down the laneway with a torch. Mr Taylor had by then recognised Mr Hatton and asked, "Where are you going Will?"
4. The police were called by Mr Taylor. Constable Daniel Newton and Senior Constable Neramitr arrived shortly afterwards in a police vehicle. They were told by Mr Taylor that Mr Hatton was located in the alleyway behind the shop. They met Mr Taylor's colleague Max in the alleyway. Constable Newton spoke with Max, while Senior Constable Neramitr ran after Mr Hatton towards the end of the laneway. Senior Constable Neramitr identified himself as police, pursued Mr Hatton and grabbed hold of his legs.
5. The police arrested and cautioned Mr Hatton and placed him in handcuffs for a short period. Mr Hatton told Senior Constable Neramitr that he had been drinking schooners of beer. The police notebooks observed Mr Hatton was "moderately affected" by alcohol. No breath test was performed. Constable Newton walked to the front of the surf shop and observed the damage to the security grille door.
6. Mr Hatton was escorted to the rear of the police vehicle and his backpack was searched. No items of interest were located (only football boots, brochures about sneakers, a bicycle helmet, gum, papers, and keys). The police also checked his identification. Mr Hatton co-operated with the police and answered their questions. He was kept in the police vehicle for over two hours. He did not admit to committing property offences.
7. Mr Hatton received a Field Court Attendance Notice the following day and was charged with two offences (a) behave in an offensive manner in/near public place/school, and (b) destroy or damage property under $2,000. Mr Hatton always denied the damage to property charge.
8. Due to Covid-19, there was some delay in bringing the matter to hearing. Eventually, Mr Hatton appeared for the hearing at Manly Local Court on 2 February 2021. There was no cross-examination of witnesses, as on the day, Mr Hatton agreed to a revised facts sheet, which Mr Taylor also signed. The "destroy or damage property" charge was withdrawn, and Mr Hatton pled guilty to the offence of "behave in an offensive manner in/near public place/school" for which he was placed on a CRO without conviction for a one-year period.
9. The CRO expired on 2 February 2022, without any breach by Mr Hatton.
There are some details relating to the above incident on which the parties do not agree.
First, the Respondent refers to Mr Hatton "kicking" the post box. Mr Hatton says that he slapped it with his hand. In the revised facts sheet, the references to "kick" were removed, and replaced with "hit". At the hearing, the Tribunal asked him to explain why he hit a post box. He said that he was telling his friend Mitch about a funny incident at the Wingham rodeo where a rider had slipped off the back of a horse and slapped it on the downward fall. In his enthusiasm, he re-enacted the event by pretending the post box was the horse and slapped it. The post box resounded which an almighty bang, much louder than he expected, which he thought must have been what shocked Mr Taylor. He said he feels embarrassed about what happened as a result of such a silly action. The Tribunal accepts that the initial noise was made by Mr Hatton slapping the post box. Neither Mr Taylor nor his colleague were eyewitnesses to the initial commotion, they only came out to see what was going on after they heard the noise. Their accounts recorded in the police notebooks do suggest that they saw him kick the post box twice. The Tribunal does not consider the question of whether Mr Hatton slapped or kicked the post box initially, or even whether he subsequently kicked it, to be determinative of the outcome of this matter. Either a slap, or a kick, it was a thoughtless thing to do and created a disturbance.
Second, there is some disagreement as to whether or not Mr Hatton fled from police and resisted arrest. At the Tribunal hearing, Mr Hatton maintained that he complied with the police. He said he had run down the alleyway to get away from Mr Taylor and his colleague Max who had pursued him. When he saw someone coming, he ran again, but stopped when he realised it was the police. He said he was stopped before he made it to any fence or gate. The police officers' accounts in their written statements and notebooks, however, indicate that Senior Constable Neramitr went looking down the alley for Mr Hatton with a torch. Half-way down the alley, a male ran from behind a corner wall down the end of the alleyway. Senior Constable Neramitr gave chase and yelled for Mr Hatton to stop for police. Senior Constable Neramitr had to grab Mr Hatton by the leg to prevent him scaling a large metal gate and eventually Constable Newton also helped restrain him. That is when Senior Constable Neramitr started the bodycam recording and the subsequent events are clearer to the Tribunal as a result. It is clear that from the recording that Mr Hatton was co-operative with the police and answered their questions. In the recording, the first question from police was why he had run from the police. Mr Hatton answered that he genuinely did not know. He said it may have been from "fear of police" and called himself a "dumbass" for doing it. He said he had never fled from police before and agreed it was "odd" and "dumb".
One additional piece of information that emerged from the hearing was why Mr Hatton was walking near Surfection. He explained to the Tribunal, and recalled that he had not had an opportunity at any hearing on the charges to explain before, that he and Mitch had been walking back to Mitch's place, an apartment near the alley behind Surfection that Mitch shared with his girlfriend. When he said to the police that he had been "walking home with Mitch" and to the respondent's lawyer at the Tribunal hearing, that he had been "walking home", he clarified that he meant walking home for the night to stay at Mitch's, and not walking to his Seaforth apartment. He confirmed to the Tribunal that he had no ill feelings towards Mr Taylor or Surfection and that he had left his employment there on neutral terms. He told the police on the night the same thing. The Tribunal accepts that Mr Hatton was most likely walking to Mitch's place to sleep the night, rather than all the way to Seaforth, and that is why he was near the surf shop and proceeded toward the alley. However, the Tribunal considers that Mr Hatton did continue to run, at least initially, from police after they identified themselves. The reason was most likely the one he gave to the police at the time, which was that it was from a fear of police and not well thought out. That does not, however, in the eyes of the Tribunal, establish either the offence for which he was charged, or that it would be contrary to the public interest to grant him a firearm licence in all the circumstances. The audio recording establishes that Mr Hatton swiftly co-operated with the police. He willingly allowed them to search his backpack. They eventually removed the handcuffs.
Third, there is uncertainty over whether or not Mr Hatton kicked the security grille and caused damage. It is true that the damage to property offence was withdrawn. The Respondent has noted authorities establishing that in determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed (Joseph at [62] to [64]). As the Respondent points out, it is the conduct, rather than the conviction that is of concern to the Tribunal (Esterman at [30]). The Tribunal therefore has reviewed all of the evidence in the record, including the court brief, regarding the damage to the security grille. The owner of the shop Mr Taylor maintained on the night that he had seen the individual, later identified to be Mr Hatton, run up and kick the security grille causing it to bend. As noted by police in the recording, the phone call to the police reported the perpetrator as wearing a hoodie and being of islander descent. Mr Hatton is Caucasian and was not wearing a hoodie. Mr Taylor told the police on the night it was dark, but he saw what he saw and knew it was him. Mr Hatton consistently denied damaging the grille. In the recording from the night, as soon as this Mr Taylor alleged this to Mr Hatton he said "I have no idea what you're talking about" and said "I didn't kick your door", "he's lost the plot". Mr Taylor's colleague also in a later interview described seeing Mr Hatton kick the grille. However, Constable Newton's statement describes Max on the night as providing "vague responses" and no "genuine answer". There was no security footage. The police evidence was never tested in a contested hearing. The Tribunal notes that the charge of property damage was withdrawn, and references to damage to the security grille were deleted in the revised facts sheet signed by Mr Taylor. In the circumstances, the Tribunal does not have sufficient evidence to find on the balance of probabilities that Mr Hatton kicked the grille and caused damage to property.
The Tribunal does not consider that the incident of 5 December 2019 constitutes sufficient grounds to find a risk to public safety if Mr Hatton were granted his firearm licence. The incident was an isolated one that took place over two years ago. The offence of "behaving in an offensive manner" in a public place contrary to section 4(1) of the Summary Offences Act 1988 (NSW) is not a prescribed offence under the Firearms Act. It involved no firearm or violence against persons. No conviction was recorded. Mr Hatton has served a 1-year conditional release order that has expired without him breaching it. He has expressed remorse and embarrassment over the events. Even if the Tribunal were satisfied of the version of events that the Respondent presents, including the flight from police, the Tribunal sees the incident in a very different light from those cases which the Respondent referred to allowing the Tribunal to take account of conduct for which convictions were charges were dismissed or withdrawn. Joseph involved misrepresentations in a firearm dealer's licence application form, and the criminal conduct for which charges were withdrawn involved "pre-planned fraudulent conduct". Esterman involved revocation of a security guard licence, and the criminal conduct for which charges were dismissed, involved kicking a client on the job as a security guard. By contrast, the incident in the present case, while undignified and embarrassing, has less connection to the activity for which the licence is sought, and poses no genuine threat to public safety.
Therefore, on its own, the 5 December 2019 incident does not lead the Tribunal to form the view that issuing the Applicant a Category AB licence would be contrary to the public interest.
The Tribunal's task, however, is to consider the totality of the evidence. In this respect, the Tribunal recalls that at the hearing the Respondent submitted that even accepting the Applicant's versions of events of the night of 5 December 2019, the Applicant's driving record is sufficient on its own to warrant a finding that a firearm licence would be contrary to the public interest. The Tribunal thus turns next to the drink driving offence from 2011.
[2]
The driving while under the influence of alcohol offence of 2 March 2011
It is common ground that in March 2011, when the Applicant was 21 years old, he drove with a low range concentration of alcohol, in Old Bar NSW. Police stopped him due to his manner of driving and he submitted to a breath analysis which returned a reading of 0.072 grams of alcohol per 210 litres of breath.
Mr Hatton's licence was revoked for a period 3 months and he undertook an Alcohol Traffic Offenders Rehabilitation Program at Nowra. Mr Hatton said at the Tribunal hearing that he learned from his mistake. In the period of more than a decade that has passed since that incident, Mr Hatton has not been guilty of any drink driving offences.
The Tribunal accepts that Mr Hatton accepted responsibility for the drink driving offence, undertook a safety course, and has learned from his mistakes, and not repeated the offence. The Tribunal recognises that a drink-driving offence can demonstrate disregard for a regulatory regime aimed at protection of public safety that could be relevant to a public interest analysis in respect of a firearms licence. Nevertheless, given the nature of the offence, the passage of time since it was committed, and the fact that Mr Hatton has apparently learned from his mistake, the Tribunal does not place weight on the 2011 offence in making its determination under section 11(7) of the Firearms Act.
The Tribunal next turns to the Applicant's other traffic violations.
[3]
The Applicant's traffic history
Since obtaining his learner's licence in 2006, the Applicant has incurred the following traffic infringements in driving a car or motorcycle, which have attracted fine default suspensions and demerit points:
1. failure to comply with conditions of provisional licence (not display P signs) on 24 May 2008;
2. failure to comply with conditions of provisional licence (not display P signs) on 9 January 2009;
3. disobey traffic lights (camera detected) on 28 October 2012;
4. rider not wear bicycle helmet fitted/fastened on 4 December 2012;
5. not comply with conditions of provisional licence - ride motorcycle of prohibited capacity/power (and not display P sign) on 3 April 2015;
6. exceed speed limit by more than 20 km/h but not more than 30 km/h whilst driving a motor vehicle (camera detected) on 12 April 2017;
7. driver use mobile phone when not permitted on 2 August 2017;
8. drive in transit lane on 2 August 2017;
9. use unregistered trailer on road on 22 April 2018;
10. drive motor vehicle not carrying licence on 9 June 2018.
It is well established that an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. For example, in Tannous at [37], Huntsman JM was satisfied that, when he viewed the Applicant's conduct as a whole, it was not in the public interest for him to hold a firearms licence. He stated:
I considered that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed…) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety and I consider it relevant that the Applicant has failed to comply with requirements of the firearms licensing scheme in relation to firearms storage, and that this follows on his conduct of repeatedly breaching traffic laws and regulations aimed at public safety. In recent years the Applicant has been before the courts for the breaches of regulations and laws aimed at public safety in relation to his driver's license, and has also been before the court for possessing prohibited drugs. I am satisfied that the evidence in this matter indicates a course of recent conduct by the Applicant which has shown disregard for laws which protect public safety and a lack of compliance with the law generally.
In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145, Scahill SM stated at [57] and [81] that:
The Applicant was unable to recall the traffic offences. Some of the offences are repeated, e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety.
…
The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms.
In Lee, Montgomery SM emphasised, at [97], that:
The traffic laws and the firearms regulatory scheme are both aimed at ensuring public safety. A disregard for a regulatory scheme aimed at ensuring public safety is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a firearms licence. Given the extensive history of traffic infringements, I cannot be satisfied that similar conduct will not be repeated or that he may similarly disregard aspects of the firearms regulatory scheme.
In many of these cases, the traffic history was more extensive, more recent, more repeated and/or more serious than that of Mr Hatton's. For example, in Madziala v Commissioner of Police [2021] NSWCATAD 269 ("Madziala") there were over 40 traffic violations. In Lee there were six suspensions, 15 speeding offences, and two counts of driving while disqualified. Similarly, in Tannous, the applicant "repeatedly, in close proximity in time, drove whilst not legally permitted" (at [32]). In Keegan-Jacques, the Applicant's speeding and drink driving offences were repeated and "did not cause him to change his behaviour" (at [57]).
By contrast to those cases, Mr Hatton's traffic record, while not unblemished, does not evince repetition (apart from failure to show P-plates, 6 and 12 years ago). This is consistent with Mr Hatton's assurance that he has taken responsibility on each occasion and learned from his mistakes. The lack of repetition suggests that the infringements have caused him to change his behaviour. The Applicant also confirmed, and the Respondent did not contest, that his most recent traffic offence occurred over 3 years ago. Mr Hatton acknowledged expressly to the Tribunal that that driving regulations are aimed at public safety and he appreciates how showing respect for that regulatory regime is relevant to the firearms licensing regime which is also based on public safety concerns. The Tribunal found these statements sincere and considered Mr Hatton to be contrite for his driving mistakes in the past.
The Tribunal also notes that in many of the cases cited by the Respondent , the traffic history was considered by the Tribunal in combination with other relevant circumstances such as:
1. concerns about compliance with firearm safety regulations or licensing rules (in Lee there was a track record of firearms related contraventions, in Keegan-Jaques disconcerting Facebook posts about firearms, in Farrugia v Commissioner of Police [2019] NSWCATAD 208 ("Farrugia") there were concerns over full disclosure in the licence forms);
2. concerns about possession of prohibited weapons or explosives (there was a prohibited weapon in Keegan-Jacques, and explosives in Lee);
3. questions over mental health or substance abuse (a drug offence in Tannous; mental health concerns in AML and Aubrey);
4. the other prior criminal conduct was very serious in nature, involving violence, organised crime, fraud, and/or current confidential police material was submitted (Aubrey, Joseph, Lee, Madziala, Tannous).
None of the above factors are present in Mr Hatton's case.
I conclude that the traffic record in Mr Hatton's case does not sufficiently raise concerns about risk to public safety such as to justify a finding under Section 11(7) of the Firearms Act.
[4]
Conclusion on public interest
The Tribunal has adopted a balanced view of the risk to the safety of the public if Mr Hatton is granted a licence, bearing in mind all the relevant circumstances discussed above. As noted in Webb, only "real and appreciable risk" needs to be taken into account. Minimal, fanciful, or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to Mr Hatton's prior conduct.
For all the reasons set out above, either on their own, or in cumulation, the Tribunal does not consider the events of 5 December 2019, the March 2011 drink driving offence, or Mr Hatton's traffic history establish a likelihood of risk to public safety that would justify a determination under Section 11(7) of the Firearms Act. I find that the correct and preferable decision is that it is not contrary to the public interest to grant him a firearms licence. The Decision below should be set aside.
[5]
Remaining Issues to be Determined under Section 3 of Firearms Act
In the proceedings before the Tribunal, the Respondent only pressed the Section 11(7) argument as a basis for refusing Mr Hatton's licence. The Respondent conceded that it was no longer maintaining that Mr Hatton is not a fit and proper person for purposes of section 11(3) of the Firearms Act. Nevertheless, the Tribunal briefly here sets out the evidence upon which it may substitute a decision to issue the Applicant a licence. It does so by addressing the evidence relevant to the "fit and proper person" test, and by addressing questions about the "genuine reason" for the license which were raised at the hearing.
[6]
Fit and proper person
Under section 3(a) a licence must not be issued unless 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". For many of the same reasons set out above, the Tribunal does not consider the Applicant a danger to public safety or to the peace.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence (Lee at [15]-[21]). In the context of the Firearms Act, the Tribunal has held that fitness and propriety must be considered in the context of at all times ensuring public safety (Lee at [17]). The issue is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake.
The Tribunal finds that Mr Hatton is a fit and proper person for the licence he seeks. The Tribunal notes that the Respondent did not question this element. Nor did it question his statements that:
The Applicant is a small business owner, having operated a retail business with 5 stores for approximately 8 years. The applicant's business employs in excess of 30 staff ranging from managers to university students. The Applicant is in a leadership role and is a role model to a number of the employees and members of society.
The Applicant is an active member of society, organising and participating in free run clubs throughout Sydney aiming to improve access to running training and new, innovative running wear.
The Applicant has recently become a Father (on 26 January 2021) and has recently purchased a property on Mitchell's Island, NSW where he intends to relocate.
The Tribunal notes that the Applicant has no history of violence, drug abuse or mental health issues. He acknowledged his embarrassing and ill-considered conduct the night of 5 December 2019. In the two years since the December 2019 incident, the Applicant has matured. He has continued to operate his successful retail business, become a parent, and acquired property for transition back to the family farm. At the hearing and in his correspondence with the Firearms Registry, he also demonstrated a knowledge of, and respect for, the firearm licensing regime.
Accordingly, for purposes of substituting a decision granting a licence to the Applicant, the Tribunal confirms that it is satisfied under Section 3(a) of the Firearms Act that Mr Hatton is a fit and proper person.
The Tribunal is also satisfied that the other elements set out in Section 3 are met. The Tribunal confirmed with the Applicant at the hearing that he had completed a firearms training and safety course, and it was for this course that he uploaded a certificate with his licence application, the fact of which is shown in the application form on the record. The Respondent did not question this, and the Tribunal is satisfied that Section 3(b) of the Firearms Act is met. Likewise, the Tribunal is satisfied of the storage and safety requirements and residence requirements in Sections 3(c) and (d) of the Firearms Act, addressed in the Applicant's application form and unchallenged by the Respondent.
[7]
Genuine reasons for firearm use
Based on the above, the Tribunal is prepared to issue a firearms licence to Mr Hatton. As acknowledged by both parties at the hearing, the Tribunal can only substitute a decision for grant of licence for which Mr Hatton has applied.
The licence for which Mr Hatton applied was a Category AB licence for the genuine reason of recreational hunting and vermin. Section 12 of the Firearms Act requires an applicant for such a licence to demonstrate either that he is the owner or occupier of rural land, or "produce proof of permission given by the owner of rural land". Mr Hatton attached to his application proof of permission from his stepfather Mr David Mudford. There was no challenge from the Respondent to that proof of permission.
Although Mr Hatton referred to the occasional need to euthanise cattle, he did not put primary production down as a genuine reason for the licence in July 2020. He explained that this was because at the time he was still living in Sydney and only spending a portion of his time at his family farm. He said that during the time spent on the farm, he would genuinely use the firearms licence for recreational hunting and vermin control, and he mentioned rabbits, as well as wild dogs and the occasional fox that might attack cattle.
Mr Hatton acknowledged that once he moves to the farm more permanently, should he wish to use a firearm for the reason of primary production, including euthanising cattle, then he will need to apply to the NSW Firearms Registry to add a genuine reason to his licence.
[8]
Conclusion
Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is to grant the licence that Mr Hatton has sought. Accordingly, the Respondent's decision should be set aside.
[9]
Orders
The Tribunal makes the following orders:
1. The Decision under review is set aside.
2. A Category AB firearms licence is to be issued to the Applicant for recreational hunting / vermin control.
[10]
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: 14 February 2022
According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
Section 75(1) of the Firearms Act gives this Tribunal jurisdiction, as it allows a person to apply to the Tribunal under the ADR Act for an administrative review of "(a) the refusal of or failure by the Commissioner to issue a licence".
In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: (see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 ("Tannous") at [25]). In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator (ADR Act, s 63(3)).
Under section 38(2) of the 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. The Tribunal has to consider all of the evidence in the exercise of its discretion.
The standard of proof that applies is the civil standard, that is, on the balance of probabilities. These are not adversarial proceedings and accordingly no burden of proof falls on either party. (Lee v Commissioner of Police [2020] NSWCATAD 144 ("Lee") [12])
Issues for Determination
The Tribunal must decide whether the Respondent's refusal to issue the Applicant's Category AB licence was "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law".
The primary issue in dispute is whether the issuance of the licence would be "contrary to the public interest". If the Tribunal agrees with the Respondent and finds that granting the Applicant's licence would be contrary to the public interest, the Decision under review would be affirmed and no other issues need to be considered. If the Tribunal does not find that a licence would be "contrary to the public interest", then before substituting a decision granting the licence, it must be satisfied of the other conditions in Section 11(3). The Tribunal notes, however, that the elements in Section 11(3) are no longer contested.
The case therefore turns on the "public interest" test in Section 11(7) of the Firearms Act. The expression "public interest" is not defined in the Firearms Act. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act (Lee at [13]). The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety.
The "public interest" factor thus allows a consideration of issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system (Constantin v Commissioner of Police [2013] NSWADTAP 16, Petas v Commissioner of Police [2013] NSWADT 137 at [36]). Public safety is to be given paramount consideration, and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements. Where there is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's personal interest and privilege to possess and use a firearm (Aubrey v Commissioner of Police [2005] NSWADT 266 ("Aubrey") at [21]).
In a familiar passage cited by the Respondent, Hennessy DP in Ward v Commissioner of Police [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under section 11(7) as well (Masterson v Commissioner of Police [2017] NSWCATAP 206 at [130]).
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 ("AML") at [7], that that the Ward decision itself had set aside a decision to revoke a firearms licence, because the Tribunal was satisfied that despite the fact that the applicant had assaulted his partner, he was a fit and proper person to have a firearms licence. Hennessy DP recalled that "[t] he 'virtually no risk' comment was made in the context of the 'fit and proper person' test" and was not a substitute for the relevant tests set out in the Firearms Act.
Other cases have pointed out that 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 [2017] NSWCATAD 97 at [64] - [66]). In Webb v Commissioner of Police [2004] NSWADT 110 ("Webb") [32], Montgomery JM stated that in determining the risk to public safety "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".
Finally, in determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed (Joseph v Commissioner of Police [2017] NSWCA 31 ("Joseph") at [62] - [64]). It is the conduct, rather than the conviction, that is of concern to the Tribunal (Esterman v Commissioner of Police [2014] NSWCATOD 70 ("Esterman") at [30].
In light of these understandings of the "public interest" test and the relevant legislation, the Tribunal now turns to consider whether it would be contrary to the public interest for the Applicant to be issued with a firearms licence in all the circumstances of this case.