Hughes v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2023-01-27

Introduction

The appellant appeals against a decision of the Tribunal in its Administrative and Equal Opportunity Division delivered on 1 July 2022 (Hughes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 219). The Tribunal determined the appellant's application for review of the decision of the respondent to revoke the appellant's firearms licence by affirming the decision.

Background

The background to the appellant's application was set out by the Tribunal in its decision, at [1] - [9], as follows: 1 Kevin Hughes (the Applicant) was first issued with a Category AB Firearms Licence on 21 September 2017, for the genuine reason of 'sport/target shooting' and 'recreational hunting/vermin control'. In his licence application, the Applicant supported his genuine reason of recreational hunting/vermin control with permission from an owner of rural land. 2 The Respondent is responsible for assessing applications put to it for licences to possess and use firearms under the Act, and approving, refusing, suspending, revoking and renewing firearms licences as applicable under the Firearms Act 1996 (the Act). 3 Both prior to his licence being issued and after, the Applicant came to the attention of Police for a range of issues (which are outlined below). On 3 July 2020, Police attended the Applicant's property and whilst there, sought to conduct a safe storage inspection. 4 The Applicant's firearms storage safe was self-constructed and located in the roof of the Applicant's property. The policeman in attendance was not able to readily inspect the firearms storage because the access to the roof was too physically narrow. The Applicant offered to remove the roof sheeting to more readily allow access for the inspection, and to access the roof himself and take photos of the firearms storage. 5 On 1 September 2020, the Applicant's firearms licence was suspended. Police informed the Applicant at the time of serving the suspension notice that the Firearms Registry was not satisfied with how the firearm was being stored, given that Police were not readily able to inspect it or the safe storage. The Applicant again informed Police that they would be unable to access the firearm, so Police had to wait outside the Applicant's house while he retrieved it. The Applicant also explained the construction of his safe to Police, however Police were not able to view it themselves and indicated that the photographs that had been provided by the Applicant to them did not assist. 6 According to Police COPS Report E 76104771 dated 7 September 2020, the Applicant drove to Sydney and attended the Lindt Café Siege Coronial Inquest in 2017, at which he approached counsel assisting. What exactly occurred during that approach and after is in dispute, but the report contributed to the Police forming the view in 2020 that there were issues of public safety for consideration in determining whether to re-issue the Applicant's licence. Police also queried the Applicant's genuine reason for having a firearms licence, given that the location and state of the firearm suggested that it had not been used for some time. 7 On 22 November 2020, Police attended the Applicant's property to obtain further information in relation to his involvement in the Lindt Café Siege Coronial Inquest, and to re-issue a new suspension notice. The Applicant spoke with Police, but disputes the record of COPS Report E 76948418 in relation to that attendance. After speaking with the Applicant, on 23 November 2020 the Applicant's firearms licence was revoked on the basis of the Applicant's failure to comply with safe storage requirements and to permit Police to have access to inspect his safe. 8 The Applicant's request for an internal review was received by the Respondent on 21 December 2021. The Applicant was not notified of the outcome of the internal review decision within 21 days, with the result that the internal review was taken to be finalised on or about 11 January 2021. 9 On 22 February 2021, the Applicant filed with the Tribunal an application for administrative review of the Respondent's decision to revoke his Category AB firearms licence.

The nature and scope of internal appeals

By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Grounds of Appeal

The appellant's statement of his grounds of appeal as attached to his Notice of Appeal commences with the general statement "Senior Member Dinnen bias in favour of Commissioner of Police throughout matter" followed by what are said to be "examples". There are then three pages largely consisting of specific objections or challenges to particular paragraphs of the decision. At the end of the statement of grounds of appeal the appellant raises two further issues:

That the Tribunal "has taken as true the contents of police events reports" but "viewing … the videos and reading the police reports show a different story"; and
The Tribunal's failure to treat the appellant's registration of his firearm under an amnesty as excusing his failure to register the firearm previously.

The appellant also sought leave to appeal on the grounds: "Decision contrary to law Bias of Tribunal Member Unlawful conduct of police"
As the appellant is not legally represented, we have considered the appellant's grounds of appeal and his written submissions to determine whether we can discern any questions of law in respect of which the appellant may appeal as of right: Ros v Commissioner of Police [2020] NSWCATAP 70 at [21].
We identify from the grounds of appeal and the appellant's submissions three potential questions of law: 1. Whether the appellant was denied procedural fairness by reason of bias, actual or apprehended, on the part of the Tribunal 2. Whether the Tribunal applied a wrong principle of law in determining that the appellant had failed to comply with the condition of his licence that he comply with the requirements for the safe storage of firearms and that a licensee permit inspection of their facilities in respect of the storage and safe keeping of firearms imposed by s 19(2) of the Firearms Act 1996 (NSW). 3. Whether the Tribunal had applied a wrong principle of law in taking into account the appellant's failure to register his firearm prior to 2017 when the appellant had declared his firearm and registered it under an amnesty.
We note that the matters raised by the appellant as grounds for seeking leave to appeal either state questions of law or do not provide any basis for the grant of leave to appeal. We shall, nevertheless, consider whether the appellant's grounds of appeal and submissions raise any basis for the grant of leave to appeal.

Bias

The requirements for a finding that a decision is vitiated by actual bias were addressed by Gleeson JA in Reid v Commercial Club (Albury) [2014] NSWCA 98. His Honour held, at [68] - [72]: 68 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. 69 Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. 70 As Gleeson CJ and Gummow J observed in that case at [71]: "The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion." 71 In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. 72 His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.
The principles by reference to which it is to be determined whether a decision is affected by apprehended bias were summarised by the Appeal Panel in Wootten v Godfrey [2019] NSWCATAP 255 at [26] - [31]: 26 In the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 27 In Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be "whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made". Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". Their Honours commented at [22] that the application of the principle in Ebner to decision-makers other than judges "must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making". 28 In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. 29 In Isbester, Gageler J explained at [59] that the determination of an allegation of apprehended bias involves "three analytical steps": Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. 30 The question of whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3]. 31 Where … the claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instances both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176]; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114].
The appellant did not make clear in his Notice of Appeal or submissions whether he alleged actual or apprehended bias on the part of the Tribunal. The attachment to the Notice of Appeal states as the first ground of appeal "Senior Member Dinnen bias in favour of Commissioner throughout matter." The attachment then lists numerous paragraphs of the decision with commentary, including, in some instances, the suggestion that the Tribunal had made errors of fact. Mere assertion of error is not sufficient to establish bias, either actual or apprehended, and it is neither necessary nor appropriate for the Appeal Panel to address each of the matters raised by the appellant.
We will, however, address the two matters which the appellant put to the forefront of his submissions.
As explained in the appellant's oral submissions, the central element of the appellant's case concerning bias on the part of the Tribunal arose from an exchange between the Tribunal and the appellant regarding the circumstances of the police attendance on 3 July 2020 to inspect the appellant's provision for the safe storage of his firearm.
The appellant maintained before the Tribunal (and maintains on this appeal, as an alleged error on a principle of law) that the police were required to arrange the inspection in advance, so that the appellant had notice of the inspection. The appellant relies upon the terms of s 19(2)(c) of the Act and, in particular, the words "in accordance with such arrangements as are agreed on by the licensee and the Commissioner". The appellant also relies upon the contents of a "fact sheet" issued by the NSW Government and the Police Force which states that it is a condition of a firearms licence that "the licensee allows inspection by police of the safe keeping and storage facilities for the firearm at a mutually agreed time (Emphasis added)."
The appellant submitted to the Tribunal that the inspection carried out on 3 July 2020 was not authorised because it was not in accordance with arrangements agreed on by the appellant and the police. The inspection followed an earlier visit by police to the appellant's premises on 30 June 2020 relating to a complaint by the appellant concerning neighbours parking a vehicle adjacent to his driveway. At the conclusion of the report of that visit maintained in the police force COPS database, the police officer involved had recorded "police will conduct a random Safe Storage Inspection at next opportunity".
In the course of the hearing, the appellant submitted that the police could have telephoned the appellant and made an appointment for the inspection. The Tribunal Member responded: "Sorry, but Mr Hughes that wouldn't be random then."
The appellant stated in the attachment to the Notice of Appeal that, although he had drawn the Member's attention to the fact sheet which stated that an inspection was to be at a "mutually agreed time": "The Tribunal member has never, never withdrawn her support for her stance or recognised her 'error'"
It is sufficient to answer the allegation of bias founded upon the foregoing circumstances to note that, for reasons which we shall outline in considering the appellant's ground of appeal alleging the application of a wrong principle of law in relation to the safe storage requirements, we do not consider that it was relevant to the application before the Tribunal that the inspection of the appellant's safe storage facilities on 3 July 2020 was not pre-arranged. There was no "stance" to be withdrawn or "error" to be recognised and nothing in the Tribunal's conduct in this context suggests a predisposition to favour the respondent.
The appellant also suggested that the Tribunal displayed bias in favour of the respondent by failing to comment adversely when the respondent was a week late in filing their submissions concerning whether orders should be made pursuant to s 59 of the Administrative Decisions Review Act 1997 (NSW) excusing the respondent from lodging certain documentation.
As the respondent pointed out in their written submissions, the Senior Member did request an explanation for the delay and offered the appellant additional time to respond. The Tribunal expects parties to comply with its directions, but occasions will arise when that is not possible. If a satisfactory explanation is provided and steps, such as the provision of further time to respond, can be taken to ensure there is no prejudice to the other party, the Tribunal has no obligation to express any criticism or disapprobation of the party in default. The Tribunal's obligation under s 36 of the NCAT Act to give effect to the guiding principle - to facilitate the just, quick and cheap resolution of the real issues in the proceedings - militates against the Tribunal dwelling longer than is absolutely necessary on minor failures to comply with directions.
There is no basis upon which it can properly be suggested that, in failing to comment adversely in relation to the respondent's lateness in filing submissions, the Tribunal displayed actual bias or might have caused a fair-minded lay observer reasonably to consider that the Tribunal might not have been impartial.

Safe storage requirements

The notice of revocation served upon the appellant on 23 November 2020 stated that the reason for revocation was that the appellant had failed to meet his "safe keeping requirements". This conclusion was expressed to be based upon the fact that police officers had attended the appellant's property on two occasions, 3 July 2020 and 1 September 2020, and that on neither occasion were the police able to inspect the facilities installed by the appellant for the safe storage of his firearm.
The Tribunal upheld the decision for reasons which included those set out in paragraphs [64] - [66], which we have extracted at [5] above.
We find no error in the conclusions there stated. The appellant had purported to make provision for the safe storage of his firearm by installing a "safe" in the roof of his home which was so situated that police officers visiting the property were unable to undertake an inspection. As the Tribunal stated, it is implicit in the requirement that a licensee permit the inspection of their facilities for the safe storage of their firearms, that such inspection be practicable, that is, that the facilities be reasonably accessible to those conducting the inspection.
If a licensee chooses to store their firearms in such a way that the storage facilities are not reasonably accessible, they cannot be said to have complied with the condition of their licence (imposed by s 19(2)(c) of the Act) that they permit inspection of the facilities.
We acknowledge, as the appellant submits, that s 19(2)(c) only requires, other than in the case of a licensed firearms dealer, that the inspection be permitted at an agreed time. However, we do not accept that it was relevant to the decision to revoke the appellant's licence that the inspection on 3 July 2020 was not pre-arranged.
As we understand the appellant's submission, it is that, if the police had notified him of the inspection in advance, he would have been able to remove a section of his roof to permit inspection of the safe in situ or alternatively brought the safe out of the roof space to permit inspection. We do not consider that either of these possibilities has any bearing on the question whether the facilities installed by the appellant for the safe keeping of his firearm met the requirements of the legislation (and in particular the requirements of s 19(2)(c) and s 40(2)).
Sub-section 40(2) provides that a licensee does not have to comply with the prescriptive requirements of s 40(1) provided they can satisfy the respondent that they have provided alternative arrangements "that are of a standard not less than the requirements set out in [s 40(1)]". The requirements of s 40(1) include that a receptacle for storage either weigh more than 150kg when empty or be fixed in an approved manner.
If a receptacle for the storage of a firearm is not practically available for inspection in situ (Emphasis added), the respondent cannot be satisfied that the arrangements made meet the requirements of s 40(1) or are of a standard not less than those requirements. We do not consider that the Tribunal erred in finding that the appellant's safe was not reasonably accessible for inspection and that the appellant had failed to demonstrate compliance with the requirements of the Act relating to the safe storage of firearms.
In particular, we do not find that the Tribunal applied a wrong principle of law in so finding.

Failure to register the firearm until 2017

The attachment to the Notice of Appeal states this ground of appeal in the following terms: "I declared my shooter under the amnesty now it appears that the Senior Member Dinnen, I and the dictionary have different ideas of Amnesty. Australian Law Dictionary 3rd edition … defines Amnesty as 'A legislative or executive act by which persons who are potentially guilty or guilty of an offence are relieved of liability (judicial, and in terms of enforcement) for their action.'"
As we understand the appellant's case, he submits that the fact that he declared and registered his firearm during an amnesty should have the result that he cannot be subjected to any adverse consequence by reason of his not having previously declared or registered his firearm.
The appellant did not put before the Tribunal or the Appeal Panel any evidence or documentation of the terms of the "amnesty" pursuant to which he claims to have declared and registered his previously unregistered firearm. There is no basis upon which the Tribunal could have reached any conclusion regarding the effect of any amnesty under which the appellant may have declared and registered his firearm. In particular, there is no basis upon which the Tribunal, or the Appeal Panel, could conclude that the terms of any amnesty permitting the registration of previously unregistered firearms precluded any subsequent consideration of the fact that the firearm was previously unregistered in determining whether the appellant's licence should be revoked. The term "amnesty" implies no more than absence of prosecution, it does not necessarily suggest that the slate will be wiped clean for all purposes.
We do not consider that the Tribunal made any error of legal principle in taking into account the appellant's prior failure to register his firearm.

Leave to appeal

We have concluded that the appeal cannot succeed on a question of law. As we have noted above, the appellant also submitted that the Tribunal had erroneously accepted as true the contents of police reports which the appellant alleges were inconsistent with the contents of the police body worn video recordings. That does not raise a question of law. The appellant would require leave to raise that issue as a ground of appeal.
The Tribunal addressed the appellant's allegations regarding the inaccuracy of the police reports at [47] - [48] in the following terms: 47 A large proportion of the documentary evidence filed and relied on by the Applicant was relevant only to the Applicant's complaints about his neighbours, the police, the local council, the conduct of proceedings by the Respondent, the conduct of a confidential hearing and tendering of confidential evidence despite his objections, and minor inaccuracies or inconsistencies in the police reports relied on by the Respondent. That material included (but was not limited to) excerpts from the dictionary and various military and maritime history books, excerpts from the works of Thucydides, photographs of a dog defecating on a lawn, photographs of cars, photographs of signage, vegetation and debris said to be located at or near the Applicant's property, and blurred photos of a belt buckle. This material was submitted by the Applicant to be relevant to the Tribunal's consideration of the COPS event reports and information reports provided by the Respondent, to the effect that their contents were inaccurate and therefore should not be accepted as evidence by the Tribunal, and that the Tribunal should not be able to receive confidential material from the Respondent. 48 Whilst the Tribunal accepts that there may be some factual inaccuracies and inconsistencies contained in the various COPS reports relied on - including, for instance, whether or not the vehicle he drove in one reported incident was a truck or a lorry, and whether he had signposted his driveway in a particular manner - the Applicant has not provided the Tribunal with any direct evidence other than his verbal statements which contradict the police record of events in respect of those incidents. Nor are the inaccuracies or inconsistencies relevant or material to the matters for determination by the Tribunal.
We do not consider that there is any basis for the grant of leave to appeal in respect of any alleged factual errors in the police reports. The Tribunal acknowledged that there may have been some inaccuracies and inconsistencies in the reports but found they were not relevant or material to the issues before the Tribunal.
We agree. There was ample basis in the uncontested facts for the Tribunal's finding that the appellant's licence should be revoked. We do not consider that there is any respect in which it could be said that the appellant has suffered any clear injustice or that the Tribunal has made any clear error in respect of any factual matter central to the decision.
Accordingly we refuse the application for leave to appeal.

ORDERS

Our orders are: 1. Leave to appeal refused. 2. Appeal dismissed. 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: 06 June 2023

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