Head v Commissioner of Police

Head v Commissioner of Police - [2024] NSWCATAD 81 - NSWCATAD 2023 case summary — Zoe

[6]

Relevant legislation

The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW.
The underlying principles set out in section 3(1) the Firearms Act 1996 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,…
The objects of the Firearms Act 1996 in section 3(2) include …(b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner…
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(3)(a) of the Firearms Act 1996.
A licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is "a risk to public safety" and issuing a firearms license would be "contrary to the public interest": section 11(5A) of the Firearms Act 1996.
The Commissioner may refuse to issue a licence if the Commissioner considers that to do so would be "contrary to the public interest": section 11(7) of the Firearms Act 1996.
Section 70 of the Firearms Act 1996 makes it an offence a person to make a statement or provide information in an application under the Firearms Act 1996 that the person knows to be false and misleading in a material particular.

[11]

Traffic record

Mr Head accepted the drink driving offences mentioned above and described those offences as a "mistake" and "poor judgement".
Mr Head said he "did a silly thing" in 2002 and regretted his decision to drive with a mid-range prescribed concentration of alcohol. He admitted to running from Police and stated that he was 21 years of age and "immature".
Ms Chenhall, for the Commissioner, asked Mr Head about the 2004 low range prescribed concentration of alcohol offence. Mr Head offered that he was just over the limit (he tested 0.065). He explained that there were two traffic lights that were difficult to judge as they were close together and the one ahead was green. He said he had consumed "a few beers". He admitted he made a mistake and takes full responsibility. He said he has not driven a motor vehicle when he had been drinking since then.
The NSW Police Force Computerised Operational Policing System (COPS) entry about the 2004 driving incident state that police were waiting in a vehicle at the intersection and they saw a pedestrian hesitate as they were about to cross at the intersection and Mr Head's car then skidded into the intersection when faced with a red traffic light.
Mr Head referred to the 2021 car accident on the M4 motorway which led to his conviction for negligent driving. He denied what the Respondent put in written submissions, that is that it was "a major crash". He said there was no damage to his car and minimal damage to the other car. He agreed that he had not paid attention to a level where he was able to stop before hitting the vehicle in front.
Mr Head relied on the transcript from the Local Court. The magistrate hearing the traffic matter referred to another car that was attempting to change into Mr Head's lane and that this vehicle distracted Mr Head and when he encountered a stationary vehicle he applied the brakes but did not stop in time to avoid collision. The magistrate stated that "it is not a serious offence" and "a relatively minor collision". The magistrate found the offence proved on the basis that Mr Head was distracted and when he turned his attention back to the roadway it was too late to break to avoid collision. In sentencing Mr Head, the magistrate found the offence to be "towards the lower end of the scale" and he was convicted and fined $100.

[24]

Alleged false and misleading information on 2021 application

Ms Chenhall put to Mr Head that he had provided false information on the 14 August 2021 firearms licence application form by answering "no" to the following:

Whether he had previously held a NSW firearms licence under the current Firearms Act 1996
Whether he had a current NSW Driver's Licence
Whether he ever had a firearms licence or permit suspended or revoked

Mr Head agreed that by answering "no" to these questions, his answers were false. He added: "as far as [he] was aware at the time" he believed the answers to be correct. Ms Chenhall pressed further, suggesting to Mr Head that if he answered "yes" to the last question it would raise a red flag with the Firearms Registry.
Mr Head responded and said that these errors were genuine mistakes and denied knowingly providing false information on the form. He described the mistakes as "human error" and said he thought a person needed a university degree to complete these types of online forms.
Ms Chenhall took Mr Head to another form a 'Declaration - Person shooting on an Approved Range or undertaking a Firearms Safety Training Course' form completed by Mr Head on 13 August 2021. Again, Mr Head ticked "no" to a question about whether he ever had a firearms licence or permit suspended or revoked.
Ms Chenhall put to Mr Head that he knew if he ticked "yes" to this question it would have impeded his ability to participate in firearms activities. Mr Head said that at that time he did not know that his Category H licence had been revoked. He said that he had believed that he handed it in as it had expired.
As referred to above, under the heading '18 October 2005 revocation of Category H firearms licence (security guard)' Mr Head was issued with a Category H firearms (security guard) licence in November 2000, which was revoked in October 2005. Mr Head denied receiving the revocation notice, dated 18 October 2005 (refer to above). When asked by Ms Chenhall about why he attended the police station and handed in his licence, Mr Head's evidence was that he was there for a meeting about arrangements for the control of a major venue New Year's Eve.

[27]

Submissions made by the parties in the open session

Mr Head argued that he was an honest and hardworking man with a wife and family. He said he had not been the subject of criminal charges or fines since 2006. He challenged some of the written accounts of Police and disputed many of the allegations made about him. He argued that Police had suggested nothing adverse about him since 2011, except for his involvement in the 2021 car accident. Mr Head said that he had worked with Police to run a program for mentoring kids. He said that he helps people and people respect him. He denied being anti-police and said he co-operates with Police. He stated that not all Police are ethical or behave the way they should. He described that allegations made about his conduct as exaggerated, old and cannot be relied upon.
Ms Chenhall submitted that Mr Head had a "lengthy history" of involvement with Police and the mere passage of time since the alleged conduct is not enough to demonstrate that Mr Head is now a fit and proper person to be issued with a firearms licence. She suggested that if the Tribunal was to accept Mr Head's assertion that he had been targeted by Police, the Tribunal would have to accept that Wollongong, Dubbo and city police had all targeted Mr Head. Ms Chenhall described this notion as "simply farcical" and submitted that it could not be accepted. She submitted that Mr Head's conduct would be of "immense concern" to the Tribunal and that Mr Head had sought to excuse or explain Police involvement with him over the years. She submitted that Mr Head had an immense dislike for Police and that he had threatened Police and assaulted an off-duty police officer. She submitted that the Tribunal should be gravely concerned that Mr Head would not comply with Police in their capacity in implementing firearms laws, such as the carrying out of safe storage inspections.
Ms Chenhall submitted that the Tribunal could find that Mr Head provided misleading and incorrect information on the 14 August 2021 firearms licence application form. She suggested that he did so in order to prevent further scrutiny, including by indicating he did not have a current driver's licence.
Ms Chenhall submitted that Mr Head did not have a genuine reason for the possession and use of firearms for the purpose of target shooting. She submitted that the reason Mr Head wanted a firearms licence was to possess other firearms. She suggested that Mr Head made up his evidence about being unaware his earlier firearms licence had been revoked. She suggested that Mr Head was not a truthful witness and that the police records speak for themselves.
Ms Chenhall argued that the Tribunal should place little to no weight on the character references as there was nothing to indicate that the referees had been provided with the detail of Mr Head's alleged conduct or criminal charges.

[29]

Findings of fact and application of the law

I make the following factual findings.
Mr Head has been involved in violence in the past. Some of his actions have given rise to criminal charges and some have not.
I found Mr Head's evidence about these incidents to be self-serving. He was not able to adequately address the police evidence put to him and I found his evidence to lack credibility.
I also found Mr Head's evidence that he did not know his membership of the Sporting Shooters' Association of Australia Inc. (SSAA) had lapsed in August 2022 unconvincing as well as his evidence that he was not aware that his Category H (security guard) licence had been revoked in October 2005.
I am satisfied on the balance of probabilities that the following incidents occurred:

Mr Head was involved in a physical fight with another man at a hotel on 4 May 2002
Mr Head physically assaulted his then partner and a friend on 22 October 2005 and on 20 February 2006 he threatened to harm her and sent an intimate video of herself and Mr Head to another person.
Mr Head assaulted an off-duty female police officer on 2 April 2006.
Mr Head touched a female patron in a nightclub on the buttocks and smashed a glass and held it up towards the woman's neck on 15 June 2006.
Mr Head was involved in a physical fight with two other men on 30 May 2009.

I am also satisfied on the evidence before me that Mr Head has an antagonistic relationship with Police. I make this finding because of the number of comments that he is said to have made to Police and the difficulties Police have documented in dealing with Mr Head.
The Commissioner placed some emphasis on the 2021 car accident. However, I accept this accident was due to Mr Head being distracted on the road. I do not include this accident in my assessment of Mr Head's risk to public safety if he were to be issued with a firearms licence or his disregard for the law. Mr Head has a lengthy traffic history but I note the drink driving offences are approximately 20 years old.
I do not consider that the character references provided by Mr Head provide much to assure the Tribunal about any risk, as they do not refer to or address Mr Head's criminal history and the allegations made about his past conduct. I therefore accord them limited weight: refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53].
I am satisfied that Mr Head provided false and misleading information on the 14 August 2021 firearms licence application form. I do not accept Mr Head's evidence that he believed at the time that his answers were correct. Neither do I not accept his evidence that the incorrect answers were genuine mistakes. I place significant weight on this, as it was recent and it is evidence that Mr Head was not honest and forthcoming with the Firearms Registry. The operation of the statutory scheme is dependent on applicant's providing true and correct information: Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18].

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Cases Cited (2)