Hulks v Commissioner of Police, NSW Police Force [2024] NSWCATAD 263 | Case summary

Is the Applicant a fit and proper person to hold a firearms licence?

The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33. The expression "fit and proper person", on its own, carries no precise meaning and 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. In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a firearms licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
The Respondent relied on 4 bases in submitting that the Applicant is not a fit and proper person to hold a firearms licence. Firstly, "dishonesty" in the Applicant's firearms application; secondly, the Applicant's criminal history; thirdly, his serious history of traffic infringements; and fourthly, his undiagnosed mental health condition.
I considered each in turn, and together.
"Dishonesty" in the application
The Respondent pointed to the Applicant's dishonesty and lack of candour in his firearms licence application made in June 2023 contrary to s 70 of the Act, although conceded that the Applicant had been found not guilty of the criminal charges under that section.
It is well settled that the Tribunal is entitled to take into account an applicant's conduct, whether or not that conduct has resulted in his being convicted of, or even charged with, criminal offences, in determining whether an applicant may hold a firearms licence: Joseph v Commissioner of Police [2017] NSWCA 31 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 at [30].
As set out above, in his licence application the Applicant answered "No" to the personal history question which asked: "Have you ever attempted suicide or self-harm?".
On 12 November 2007, however, in connection with a charge of Drive on road while suspended, the Applicant reportedly answered "Yes" to the custody management question (CMQ), "Have you tried to take your life?", and further, reportedly stated, that he had "attempted to take his life before by an overdose of ecstasy tablets".
On 11 August 2009, in connection with charges of Drive vehicle recklessly/furiously or speed/manner dangerous, Drive while disqualified from holding a licence, Use uninsured motor vehicle and Use unregistered registrable Class A motor vehicle, he again reportedly answered "Yes" to the CMQ when asked, "Have you tried to take your life?". He further reportedly stated that "About five years ago - attempt overdose".
On 10 August 2023 Senior Constable Bathgate spoke with the Applicant following the refusal of his firearms licence application. When asked about his statement in November 2007 that he had attempted to take his life by an overdose of ecstasy tablets the Applicant reportedly agreed he had said that but that it was "a very long time ago". He was also referred to his answer in the 2009 interview when he answered 'Yes' to the question 'Have you tried to take your life?' that about five years before he had attempted an overdose, which would have been in about 2004. When asked about the inconsistency with his answer the suicide question on his firearms licence application he reportedly said that he "didn't think it asked to go that far back so that is possibly a misread on the part of myself". He noted that what had occurred was "20 years ago", "a different lifetime".
The Applicant was cross examined extensively. He agreed that the appropriate answer to the question about suicide was "yes". He said that there was "an event" in 2004, the details of which he could not now recall, from which he had "moved on". He disagreed with the proposition that he knew his answer to be false or misleading. He said that after the suicide attempt in 2004 his life underwent a significant change - he met his (now) wife, had children and worked at his career. He did not regard what happened in the early 2000s as significant in his life.
He was asked about his interview with SCON Bathgate and agreed that his responses had been correctly recorded. He re-iterated that he did not think the question required him to "go back that far", but agreed the question was not limited in time. He rejected the proposition that he had recalled the attempt but had discounted it. He also rejected the proposition that in saying he "misread" the question, he had considered, and excluded the attempt. He said that due to the passage of time and changes in his circumstances he had not remembered it. He did not agree that it was inconsistent to have said he had misread the question. He said that at the time he answered the question what had occurred 20 years beforehand did not enter his mind at all. He was also asked about not mention to SCON Bathgate that he was only thinking back 10 years. He said that his mind was only working back to the previous 10 years. He was also referred to his internal review request in which he had written that "16 years later, thoughts of who I was do not enter into the world we have, so upon answering the question [he] had answered it truthfully". He rejected the proposition that he had not mentioned that he had not considered the attempt. He said that in filling out the form he did not dismiss his history but just did not think that far back.
He was also referred to his evidence before the Local Court where he had said that a lot of the questions on the application form referred to 12 months or 10 years. He said there that at the moment he filled out the form he was only thinking back "in that sort of 10 year period". He denied that he had, in effect, crafted a response to best suit his defence. He was also asked about conduct on 2 occasions in 2007 when he had attempted to evade Police for traffic offences. He said that he had panicked, and denied that he only thought of what was best for him.
In Balle v Commissioner of Police [2021] NSWCATAD 187 I said at [14]: If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 (Bladen).
Recently, in GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73 I said at [13]: The success of the licensing regime is dependent on licensees providing a full and frank disclosure In their communications with the Registry: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197. Those who have not done so, despite posing no other risk, may nevertheless fail the 'public interest' test as their conduct threatens the success and integrity of the licensing regime. The seriousness of deliberate failures in this regard is reflected In the offence in s 70 of the Act which provides that a person must not, or in connection with an application under the Act, make a statement or provide information that the person knows is false or misleading with a material matter. Contravention of this section could incur a punishment by imprisonment of up to 5 years. The Tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: Leatham V Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121, [18]; Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 at [104].
The reason the Applicant's licence application was rejected was because he did not disclose the suicide attempt. I observe that the information that the Applicant had made the attempt was known to Police and it was, it appears, that information which alerted Police to the inaccuracy in his application. It would seem pointless to attempt to avoid detection of the attempt by simply not declaring it, when he had already disclosed that information to Police, albeit in another context.
In all the circumstances, I accept that the Applicant did not intend to mislead the Respondent by providing false information in relation to the attempt. I accept that the form may have been misconstrued by the Applicant or that he simply had expunged the unhappy events of 2004 from his memory. I accept that he was not engaging in an attempt to deceive Police with a view to enhancing his position to obtain a firearms licence.
Applicant's criminal history
In June 2009, Police attended the Applicant's home following reports of a stolen boat at the premises. The Applicant was unable to provide sufficient evidence to Police to verify that he had purchased the vessel, as he claimed, despite being given numerous opportunities to do so. The vehicle was also unregistered.
On 8 January 2010, the Applicant was convicted of Goods suspected stolen in/on premises and he was ordered to enter into a 12 month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 and was ordered to pay $1740 compensation. As far as I could ascertain this was the Applicant's only non-traffic related offence.
In relation to drug use, the Applicant said in cross examination that he could not recall where he had obtained the ecstasy tablets in the suicide attempt, other than "from a drug dealer in Campbelltown", with whom he had had "many" dealings, as he had been a regular user of ecstasy. I accept that, at least up till 2004, the Applicant was the user of illicit drugs. However, he does not appear to ever having been charged with any drug-related offences.
Applicant's traffic infringement history
The Respondent relied on the Applicant's traffic history as demonstrating repeated poor conduct and decisions and hence an inability to learn and change. His history includes 19 infringements, between 2002 to 2020, including: 1. 7 incidents of speeding (the last in 2020); 2. 3 incidents of driving while suspended or disqualified; 3. 2 incidents of driving while unlicensed; 4. 2 incidents of driving furiously or recklessly in a dangerous manner, or negligently; 5. 1 incident of driving in an unregistered and uninsured vehicle; and 6. 3 other traffic infringements, including not displaying P plates and not wearing a seatbelt.
The Respondent submitted that the Applicant's conduct in relation to traffic offences may indicate an inability to observe, or an intentional disregard for, rules which are imposed for public safety and may indicate a lack of regard for his own safety and that of the public.
It is well established that repeated breaches of traffic laws and regulations are a relevant consideration in determining whether a firearms licence should be granted: Tannous v Commissioner of Police [2011] NSWADT 116 at [32] and [37]; see also Himo v Commissioner of Police [2021] NSWCATAD 321.
In view of the Applicant's evidence of a turnaround in his life, I particularly considered his offences since that time. I observe that most of his offending occurred before 2009, when he was aged between 18 and 25; the Applicant is soon to turn 40. Of the offences, in the last ten years the Applicant has had 3 speeding charges, and one charge of drive without a headlight. The Applicant's recent driving history was 2016 - drive without headlamp, 2017 - speeding, 2019 - speeding, and 2020, now over 2 years ago - speeding.
Although he previously had a significant history of traffic infringements, I do not regard the Applicant's recent history as particularly poor. His recent history is consistent with a turnaround, and it does not lead me to the view that his earlier conduct will be repeated, nor does it demonstrate a current disregard for safety laws.
Applicant's mental health
The Applicant, on his own evidence attempted suicide in about 2004. There was 'an event', the details of which he could not now recall. On his evidence, following the suicide attempt he underwent no mental health assessment, received no diagnosis of a mental health condition, and underwent no medical treatment. The Respondent submitted that the state of his present health is unknown and it is also unknown what had triggered the attempt, and might again trigger an attempt.
There was no evidence of the Applicant having any mental health issues since the attempt. Contrary to the Respondent's submission that his present condition is unknown, I am satisfied that the attempt, now 10 years ago, was likely to have been an isolated event. That it did not require any ongoing medical intervention or treatment and was capable of being put out of the Applicant's mind, suggests that the attempt was not critical.
I am satisfied that the evidence before me does not support a finding that he suffers from any mental health impairment or condition.
Conclusion in relation to the fit and proper person test
On the evidence before me, I accept it is likely that the Applicant erred in completing his application rather than attempted to be deliberately misleading. For the reasons given above I cannot be satisfied that in answering no to the question about a previous suicide attempt, the Applicant was being deliberately misleading.
As to the references provided by the Applicant, the Respondent submitted that little or no weight could be attached to them. While the Applicant's wife and mother wrote of his strong family and community commitment, it was submitted that the Applicant's mother had said nothing about whether she knew of her son's criminal history, nor, for that matter, that she was aware of his previous suicide attempt. Further, for her to suggest that "over the past decade and a half" he had been in a "very sound space consistently" should be disregarded because there was no evidence that she had any medical training that might lead her to that view. Similarly, the Respondent was critical of the Applicant's wife's evidence in that it was unknown if she was aware of his suicide attempt or his criminal history. I reject the Respondent's criticisms of these references because, on the evidence, I am confident that it is more likely than not that each of these close family members was aware that the Applicant had been in trouble with the Police in the past and that he had attempted suicide. I accept too, that his mother was in a position to make candid non-professional observations about his mental health. I observe that neither was called for cross examination.
The Respondent was also critical of Mr Crain's evidence, he having written, somewhat obliquely, of the Applicant's "past indiscretions". He wrote, nonetheless of the Applicant's level-headedness in the 7 years he has known him, and, significantly, in my view, in the context of firearms and his keenness to learn. He also wrote of his having built up a business and that he has involved himself in the local community. I am satisfied that Mr Crain was likely to be aware, if only in general terms of the Applicant's previous offences. It was unclear though if he was aware of the Applicant's previous mental health issues, so limited weight can be attached to his reference: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53]. As I am satisfied that the Applicant's wife and mother were very likely to be aware of his previous suicide attempt, more weight is attached to their observations.
The Applicant's solicitor described his client by a somewhat quaint term: as having been as a young person, something of "a tearaway". He had a history of drug abuse, a very poor driving record which showed disrespect for safety rules, had a "goods in custody" offence and had made a suicide attempt. This was now nearly 20 years ago. The Respondent submitted that the Applicant's lack of candour and frankness in his licence application demonstrates no change in character and that he is a person lacking in the necessary fitness and propriety. In Re Davis (1947) 75 CLR 409 the High Court held that dishonesty and a lack of candour and frankness demonstrates that a person is not of good fame and character. However, I have found the incorrect statement was not the product of the Applicant's dishonesty.
There was evidence about the changes in the Applicant's personal circumstances since that time: he met and married his wife, became step-father to her child, had 2 children and subjected himself to a vigorous vetting process to adopt 2 other children. They moved to a rural area and he worked at his career and built up a business; he is a Scouts parent helper; he has coached first grade rugby and assisted with kids rugby; he has assisted the community during fire and flood crises; and he attends school events. There have been only minor traffic offences, and his past, I am satisfied, is, and has been for about 15 years, behind him.
In Saxby v Commissioner of Police [2021] NSWCATAD 275 at [95] I said that the Tribunal must look at the Applicant's conduct as a whole, using the Applicant's past conduct as a significant guide: Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. In O'Brien v Commissioner of Police [2022] NSWCATAD 259, SM Montgomery said at [59]: … it has been widely accepted that while it is impossible to say with certainty how any individual will behave in the future, prior conduct can provide some guidance.
In relation to past conduct, the mere passage of time is not sufficient to prove reformation of character. There must be clear evidence that the person has re-established themselves as a different person in order to demonstrate reformation of character: see Hunt v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 88 at [42]. I am satisfied, based on the Applicant's evidence, that of his referees and the objective evidence of a dramatically reduced criminal/traffic infringement history that he has indeed a "changed man".
For these reasons, and taking the Respondent's points of concern together, I am comfortably 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.

Public interest

The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that "the public interest" is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal's decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest.
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant said that he seeks a firearms licence because they are an outdoors-oriented family. Not only did he seek a licence for vermin control on friends' properties but vermin like deer, wild boar and goat would also be an alternative source of protein for his family. Private interests such as those described by the Applicant, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
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 that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
The Applicant has had a relatively poor driving record. I observe that his last offence was for speeding in June 2020, now over 4 years ago. Prior to that, in recent years there were speeding offences in 2019, 2017 and 2014. Consistent with his turnaround, referred to above, his recent history no longer demonstrates a continuing disregard for safety laws. He is a mature man with significant family and community responsibilities. I do not consider the Applicant having a firearms licence presents a real and appreciable risk to public safety.
My conclusion is therefore that the Applicant is a fit and proper person to hold a firearms licence, and it would not be contrary to the public interest for him to hold such a licence.

Hulks v Commissioner of Police, NSW Police Force

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