Horan v Commissioner of Police, New South Wales Police Force - [2024] NSWCATAD 6 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Horan v Commissioner of Police, New South Wales Police Force

[2024] NSWCATAD 6

NCAT Administrative and Equal Opportunity|2023-12-19

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-12-19

Catchwords

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16

Source

Original judgment source is linked above.

Catchwords

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADT AP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hijazi v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 353Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354Meggit v [2022] NSWCATAD 353Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156

Judgment (4 paragraphs)

[1]

The applicant's links with Derek Horan

Derek Horan's criminal history is relevant to the present application if it bears on the issue of whether the applicant's way of living or domestic circumstances give rise to the belief that he may not personally exercise continuous and responsible control over firearms (s 11(4)(a)).
In Meggit v Commissioner of Police [2022] NSWCATAD 353, [27], Griffin SM held that the tribunal must objectively be satisfied from established facts of the matters set out in s 11(4)(a), that is, whether the applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
The tribunal observed in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149, [31] that given the breadth of the discretion and the overriding object of public safety, there was no basis for differentiating between conduct of the applicant themselves and conduct of another that may impact on public safety in the context of a firearms licence. Consequently, the conduct of the applicant's father was a relevant factor in determining whether the applicant might personally exercise continuous and responsible control over firearms.
The tribunal has also made clear that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to criminals or criminal organizations if they remain associated with such persons or organizations: Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194, [90].
In support of the contention that the applicant has links with his father Derek Horan that could raise safety concerns, the respondent submits that the applicant's documents (exhibit A1) were misleading in that they attempted to distance the applicant from Derek and the Settlers' Way property, but omit that the applicant and Derek run or work for, or both, the same company, APH. Derek's assertion in his written statement that he was lucky to see the applicant once a month could not reasonably be believed in circumstances where they appeared to run a business together and, even if they were not seeing each other, they would need to be in regular correspondence. The applicant had given no evidence that he had ever resided in Newcastle and there was no objective, independent evidence in support of the claims by the applicant, Derek and Kelly.
Nor was there any objective evidence to show that he had moved into a new property in Kempsey. His attempts to distance himself from his father by asserting that he had changed address was misleading in circumstances where he was aware that his licence was cancelled because of his association with his father. He had failed to be transparent with the tribunal about his continuing close association with his father. Even if he had moved to the Rudder Street, Kempsey, property, that address was only a 10-minute drive from the Settlers' Way property (exhibit R3, tab 12).
At the hearing the applicant testified that about a month previously he had moved into the Rudder Street property at the apartment number specified and that his wife and children were residing there. Derek and Kelly in their written statements had foreshadowed such a move. Previously he had been living four nights a week in Newcastle and three nights at Kempsey. His apartment was a 15-minute drive from the Settlers' Way property.
In his oral evidence he said that he had been working for APH for 2½ years as a grader operator, but was not a manager. He did, however, try to help the company to obtain work, because if it were to fold up he would be out of a job. He would commonly see his father on Friday afternoons to give him the daily work dockets, though he did not discuss the management of the company because he was working in Newcastle. Sometimes he did contact his father, for example in order to gain approval to take somebody on. Derek confirmed that the applicant was working as a grader operator, adding that he "look[ed] after the boys at Newcastle".
He had discussed his licence application with his father-in-law, but not with Derek or Kelly, believing that they already had licences. He did however mention it, as the subject had come up in conversation.

[2]

Evaluation

The respondent's case in support of licence revocation rests substantially on the applicant's connection with his father, Derek Horan, who is currently subject to a WPO and a FPO issued on 19 September 2023. He has a 1996 conviction for assault occasioning grievous bodily harm which occurred when he, his brother and another attended at the victim's property for the purpose, he said, of requesting the return of certain property that he believed the victim had stolen from him. The victim was hospitalized with a brain haemorrhage and became comatose for a time. Derek maintains that the victim attacked him and that he retaliated in self-defence, but that defence was not raised at the hearing (he pleaded guilty). It seems less than probable, when three men with a grievance approach a man on his own who suffers serious injuries as a result, that it was the victim who initiated the violence.
Derek was accused of threatening behaviour by a former partner in 2015, leading to her taking out an AVO against him. He had been accused of threats of violence towards a Corrective Services officer in 2003 which also resulted in an AVO against him. More recently, he was made the subject of a WPO and an FPO in 2023 following a police search of his premises that located an indoor hydroponics cannabis arrangement and a number of prohibited items. He admitted that he had been involved with the Bandidos OMCG for a time as a "nominee". though never as a member, but said he had broken all ties with them seven or eight years ago, having become disenchanted with the organization because of its criminal activities.
It may be noted that Derek and Kelly have had a history in relation to firearms licensing:

on 2 April 2013, Derek applied for a licence, which was refused;
on 27 September 2016, Derek applied for a licence, nominating a rural property at Collombatti on which he proposed to hunt; that application was also refused;
on 21 October 2016, Kelly applied for a licence nominating the same rural property as in Derek's 27 September 2016 application and was issued with a licence;
in February 2022, Kelly applied to renew her licence but failed to implement her photographic advice; consequently her licence expired on 30 April 2022.
on 24 July 2022, Derek applied for a licence, stating that he had been given permission to shoot on a property at Tooroka, which was also refused;

[3]

Orders

Decision under review set aside.
A category AB firearms licence is to be issued to the applicant.
Such licence is to be subject to a condition to the effect that no firearm possessed by the applicant pursuant to such licence may be stored in any premises not owned, controlled or occupied by the applicant or a firearms dealer.
Pursuant to s 64(1)(c) of the CAT Act, the publication of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4 is prohibited.
Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR4, or matters contained in the confidential material and confidential exhibit CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

[4]

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: 08 January 2024

Parties

Applicant/Plaintiff:

Horan

Respondent/Defendant:

Commissioner of Police, New South Wales Police Force

Legislation Cited (5)

Civil and Administrative Review Act 2013(NSW)

Administrative Decisions Review Act 1997(NSW)

Crimes Act 1900(NSW)

Firearms Act 1996(NSW)

Firearms Regulation 2017(NSW)

Cases Cited (19)

ding [2014] NSWCATAD 184; Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Jai Horan (Applicant)

Approach

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

Fit and proper person

The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is no longer a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].

Public interest

The main ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

(1990) 94 ALR 11

(1938) 60 CLR 316

(1955) 93 CLR 127

(1984) 1 FCR 354

(1990) 170 CLR 321

Cited By (1)

Campbell v Commissioner of Police, NSW Police Force; Franey v Commissioner of Police, NSW Police Force

[Not for publication]
On the evidence before the tribunal it would not be in the public interest for the applicant to hold a firearms licence while resident in the same premises as Derek Horan or to store firearms in such premises. Such a domestic arrangement could carry a real and appreciable risk to public safety.
The applicant's evidence, however, is that until a month ago he had been living four nights a week in Newcastle and three at Settlers' Way, and that since then he has been resident at [apartment number] Ruddock Street, Kempsey, which is a 15-minute drive from Settlers' Way (10 minutes by the respondent's estimate) with his wife and children. Derek and Kelly's evidence provides a measure of support for that assertion. The respondent disputes that claim, saying there is no objective evidence for it.
The respondent also challenges the applicant's contention that he is involved with his father's company, APH, only as an employee, though one who seeks to help its marketing profile, and not as a manager. His role is that of a grader operator, as a kind of leading hand for the Newcastle operations, delivering the work dockets to his father on Fridays and occasionally telephoning him in connection with a personnel matter. He knew his father had a criminal history, which at one stage involved some kind of altercation, but said it mostly arose before he was born.
In Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156, Scahill SM set aside a licence revocation decision where the applicant had no criminal record, but had been an OMCG member. But he had held a firearms licence for 4½ years while an OMCG member without incident (at [141]). Similarly, in Hijazi v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 148 the applicant had links with the Comancheros OMCG and his brother was a high-ranking member of it, but Frost SM found no evidence that his behaviour was thereby "tainted", adding that where an applicant has a fully compliant history, the best indicator of future behaviour was past conduct. His holding of a licence presented no real or appreciable risk to public safety.
The applicant is a married man with two children who has no criminal history, seemingly not even a traffic violation. He has no history of violence or threatening violence, no record of drug or alcohol abuse and no history of mental health problems. He states, and it is not disputed, that he has undergone many police checks in connection with his work and no queries have ever been raised about his fitness. The evidence of a person with such a profile commands a certain measure of credibility unless there is evidence to the contrary. It is well known that OMCGs make use of persons with no criminal record as cover for their criminal activities, but here there is insufficient evidence to suggest that there is any risk of such coercion or influence over the applicant, especially as he no longer resides at the same premises as Derek.
The respondent objected that the applicant contradicted himself by saying that his father had never been involved with an OMCG, but had then said he had broken his ties with the Bandidos seven or eight years ago. He explained that what he meant was that his father had never been an actual member of the Bandidos, though he had associated with them until seven or eight years ago. That explanation is ex facie plausible as an account of his own state of mind, given that Derek's evidence in the tribunal was to the same effect, that he had been nominated for membership but had never become a Bandidos member.
The respondent also contended that the applicant had not been transparent about his involvement in his father's earthmoving business. His written statement indeed does not mention that work relationship, but the primary focus of the proceedings had been on the concerns raised by his residence under the same roof as Derek, not with his employment relationship. Thus, the revocation notice dated 9 March 2023 states that "Due to your domestic living circumstances, consideration must be given to the possibility that you may be coerced into giving access to firearms…." (exhibit R1, p 17). Similarly, the internal review decision concludes that "I believe that your domestic circumstances raise relevant concerns and leads me to believe that it would not be in the public interest for you to remain authorised for firearms" (id., 24). At the hearing he was quite forthcoming about the work arrangements, however, and his evidence was not refuted.
It was also submitted that the fact that Derek and the applicant applied for licences on the same day, 24 July 2022, suggested some kind of cooperation or collusion. The applicant denied any such cooperation, saying that he had believed at the time that both Derek and Kelly already had licences and he had only mentioned his intention to apply when the subject came up in conversation. As it is hard to see what advantage they could have hoped to gain by applying on the same day, indeed quite the contrary, it seems unlikely that there was any nefarious intention behind the applicant's action in that regard.
[Not for publication]
[Not for publication]
The totality of the evidence leads to the conclusion that the applicant is a fit and proper person to hold a firearms licence without risk to public safety or order, that nothing in his domestic arrangements would impair his ability to exercise continuous and responsible control over firearms, and that his holding of the licence would present no real or appreciable risk to public safety, as that concept is understood in Webb. It would thus not be contrary to the public interest for him to hold a firearms licence. I so find.
The decision under review should therefore be set aside and a category AB licence issued, but subject to a condition under s 19(1) of the Firearms Act to the effect that no firearms possessed by the applicant pursuant to such licence may be stored in any premises not owned, controlled or occupied by the applicant or a firearms dealer. Confidentiality orders pursuant to the Civil and Administrative Tribunal Act 2013 (CAT Act) are also to be made.