The Applicant provided an undated statement which he filed in the proceedings. He affirmed that statement in his evidence.
The Applicant said he has held a firearms licence continuously since 2004 without incident. He acknowledges that he has been somewhat stubborn in his past and that he drank too much alcohol. However, in the last few years he has "turned his life around". He has worked hard to deal with previous anger issues. He said he has undertaken an anger management course in 2022 which he passed. I note the statement of attainment/certificate of that course has been included in the Applicant's material. He also said he has stopped drinking as much alcohol.
The Applicant said "I have been going through changes in my life, I rarely have a beer. I have moved away from the area where I was getting myself in trouble."
He agreed in cross examination that at times he had a tendency to drink too much. The applicant said it was his idea to complete the anger management course because he "was getting a long way with Rehab and this would better myself in the future." referring to him limiting his consumption of alcohol. The applicant agreed that he has not undergone any specific medical or alcohol counselling. I accept the Applicant as an honest and reliable witness.
As set out above, the focus of the Respondent's decision to revoke the Applicant's firearms licence related to the more recent alcohol related incidents. I intend to deal with each of them below.
[2]
16 November 2014 incident at the Paxton Hotel
The Applicant did not give evidence about this incident. I accept the version of events as contained in the COPS report which essentially describe the Applicant being involved in a physical altercation in the male toilets at the Paxton Hotel. The Applicant had been ejected from the Hotel for being unruly. I find that the Applicant was involved in the incident as described. The altercation included the Applicant being intoxicated. Police took no further action. I give this minimal to moderate weight.
[3]
18 January 2016 incident at Wangi Wangi RSL Club
The applicant said he was enjoying a good afternoon at the RSL club when at about 8:00 PM a man named 'Pommie' entered the club. Five other men come over to the table and started to 'have a go' at the Applicant which followed on from a similar incident that occurred some weeks earlier. The Applicant asked the man to go away and to leave him alone. He then stood up and went to the men's toilets. The guy known as Pommie followed him in to the men's toilets and king hit him several times. The applicant went and reported the incident to staff at the bar and asked for the police to be called. The applicant waited for police to attend. He explained what had happened to the police and were told they would contact him about this assault. He said the police did not contact him.
The Respondent submits that a staff member at the RSL had contacted police in relation to a verbal altercation between the applicant and a person called 'Pommie'. The Applicant is alleged to have been asked to leave the premises due to his demeanour and level of intoxication but he refused.
The COPS entry E 59876036 records that the incident occurred at approximately 8:00 PM. The Applicant is alleged to have said some words to the person named Pommie. Pommie followed the Applicant into the men's toilets and is alleged to have punched him in the face several times. The Applicant later approached staff at the bar for the police to be called. Bar staff are recorded as having already called the police. This request by the Applicant to call the police is consistent with his evidence.
The COPS report records that the Applicant was asked to leave the premises due to his demeanour and level of intoxication, but he refused to do so. The COPS report indicates that all parties were to be contacted for further investigations to take place. There is no evidence that police followed up on this about this incident.
The Applicant was not cross examined about this incident. I accept the Applicant's unchallenged version of events. It is unclear whether the Applicant first said words to Pommie which may have led to the altercation. What is clear is that the Applicant was affected by alcohol ending up in a physical violent altercation with the person named Pommie. As to who was at fault remains unclear. I attribute minimal to moderate weight to this incident.
[4]
14 June 2018 incident at the Paxton Hotel
The Applicant said that he made a comment to a patron at the Paxton hotel that it was " a bit late for a boy that age" to be at the bar. He was referring to another patrons 7 year old son sitting with his father. The father of the child attempted to "pick a fight" with the Applicant. When the Applicant was outside smoking he was punched in the face by the father of the child, which caused him to stumble back and trip falling to the ground. The Applicant was taken to hospital following this incident for investigation.
In a COPS event E 68448462 the Applicant is recorded of having consumed about 12 schooners of beer. An altercation occurred on the street outside of the hotel where the applicant had fallen backwards and hit his head on the gutter. The reminder of the COPS report generally corroborates the version of events provided by the Applicant.
The conclusion of the investigating police officer was that the Applicant's intoxication was a contributing factor in the incident. The applicant does not deny this to be the case. I give this minimal to moderate weight.
[5]
Incident on 16/18 August 2020
The Applicant said that at about 10:30 PM on the stated date he was awoken by police at his front door. It is alleged the Applicant had said to his neighbours that he was going to dig up their driveway. The Applicant said, he had not been at home that weekend, nor, had he seen or spoken with his neighbours. He told police that it was the council that was wishing to remove the driveway as it had been built illegally. He said, he was frustrated with the police as they were accusing him of the neighbour hold told them and they were not listening to him.
The COPS report E 75143744 records a verbal altercation allegedly occurring between the applicant and his neighbours. The applicant is recorded by police as having become loud and yelling. No further action was taken by the police.
I accept the Applicant's explanation noting he was not cross examined on this event. I give this minimal weight.
[6]
Incident on 27 October 2020
The Applicant said on the stated date he went to the residence of a person by the name of Steve to pick up washing machine parts. He had lent Steve those parts a few months earlier. He asked Steve for the parts back but was apparently told they had been sold because, Steve needed the money. The Applicant said he told Steve that the parts were "not his to sell". Steve pushed the Applicant down the stairs and took a swing at him. A verbal altercation occurred and the Applicant told Steve he was going to call the police. Sometime later the police attended the Applicant's premises alleging he had assaulted Steve. After providing his explanation to the police no further action was taken.
The version of events recorded in the COPS Event is slightly different to the Applicant's version. However, he was not cross examined on this. I accept that the Applicant engaged in a physical altercation with Steve in the backyard. The COPS report indicates that Steve was not too concerned about the incident. I, therefore, conclude that the seriousness of the incident is modest. Steve did not wish to make a statement, nor, progress the complaint further. I give this minimal weight.
[7]
4 April 2021 incident
The most significant event is the one which occurred on 4 April 2021 when the Applicant was engaged in a physical altercation with the driver of the courtesy bus on his way home from the Wangi Wangi RSL club.
The Applicant said that he had been at the club for a friend's birthday and at around 8:00 PM he decided to go home. He caught the clubs courtesy bus with a few other people. The Applicant asked the bus driver to be dropped off and asked him on several occasions to stop so he could get off the bus. The driver continued driving to the next stop which was twice as far from the Applicant's home. At this point the bus driver ordered everybody off the bus as it was the last stop. The Applicant informed the driver he had missed his stop. The Applicant asked the bus driver to either take him to his home or back to the club. When taking the Applicant back to the club the bus driver became angry and violent and then stopped the bus telling the Applicant to get out of the bus. He left the driver's seat and came around to the passenger window where he started punching the Applicant through the window. The Applicant said he tried to push the driver back but the driver continued to punch him. The Applicant then opened the door. His left leg was slammed between the door and the side of the bus approximately five times by the bus driver as he attempted to exit. The police arrived and took statements from the Applicant and the bus driver.
In a COPS event number E 79087004 the police record the following. The Applicant had been at the club where he consumed about six schooners of beer and two cans of Jack Daniels and coke. The bus driver alleges that the Applicant verbally abused him. The bus driver stopped the bus and requested that the Applicant leave the bus but he refused. The bus driver said that as he approached the Applicant's side of the bus he was punched in the face through the open window. When the Applicant attempted to get out of the bus, fearing he would be further assaulted, the bus driver punched back striking the applicants left side of his face. The bus driver also attempted to push the bus door closed while the Applicant's left leg was hanging out jamming it in the door.
The Applicant is recorded as having told the police that the bus driver attempted to pull him out of the vehicle before he was punched several times to the left side of the face. The Applicant said he attempted to defend himself which resulted in the injuries to the bus driver. The police observed red Marks and swelling to the left side of the Applicant's face, small scratches to his head, and swelling to his left leg. Both the bus driver and the Applicant alleged each other person had been the aggressor and they acted in self-defence. The police determined that the injuries sustained by both the Applicant and the bus driver are consistent with both versions given. The police took no further action.
The applicant agreed in the cross examination that he had consumed about six schooners of beer and two cans of bourbon and coke. It is clear he was intoxicated.
Senior Constable Gregory Naughton gave evidence. He adopted a statement made 16 January 2023. Senior Constable Naughton essentially affirmed the contents of the COPS report. He said he did not observe the altercation and his statement is taken from notes and observations of other officers.
It is difficult without a statement from the bus driver to resolve which version of events I prefer. However, the Applicant gave evidence and that evidence was tested. I accept his evidence in this regard. It is consistent with the police findings that each of the Applicant and the bus driver's versions are corroborated by their evidence. I give this moderate weight.
[8]
Bottles of alcohol in the Applicant's Home
The Respondent relies on evidence from Senior Constable Boyd that when attending the Applicant's premises to seize firearms following the revocation of the Applicant's firearms licence, she observed many empty alcohol bottles within the Applicant's home. I was asked to draw an inference that this evidence could establish the Applicant's continued, excessive, use of alcohol. I decline to draw such an inference. The cross examination of Senior Constable Boyd, and the Applicant does not satisfy me on the balance of probabilities that the bottles were the Applicant's. This is because I could not rule out that the consumption of alcohol was due to the Applicant's sister. Senior Constable Boyd said that it was possible the Applicant's sister who had been staying at the Applicant's home who had consumed the bottles of alcohol. I give this no weight.
I also do not place any significant weight on the respondent's submission that the Applicant attempted to evade Police attending to revoke his licence. The Applicant was not cross examined on this.
At the conclusion of the Applicant's evidence he said the Tribunal should find that there is no risk to the public if the Applicant has access to firearms.
[9]
Discussion
This is a matter which concerns the public interest and specifically whether the Applicant is a fit and proper person and if it is in the public interest for the Applicant to hold a firearms licence.
The Respondent has raised a number of issues of concern. I have considered each of those issues and I have formed the view that the correct and preferrable decision is to set aside the decision under review.
[10]
Public interest
The Applicant has for a number of years shown a pattern of drinking an excessive amount of alcohol, which from time to time, has led to a degree of disregard for his safety and the safety of others.
The Applicant has a modest criminal and traffic history. His offending is at the lower end of the scale. I have given this evidence limited weight.
Of particular relevance is that the Applicant's conduct has not included any offence concerning his use of firearms, threats of serious violence and violence involving firearms. The Applicant's conduct is more aptly described as him being a person who might 'mouth off' when affected by alcohol. This has prompted the persons who are the subject to his verbal outbursts in responding with modest violence, pushing and shoving, and other verbal responses. While any type of violence is not to be condoned, it would appear on the facts of each of the complaints, that the Applicant has usually been the person who received the brunt of each altercation.
I have considered that the Police have not perused criminal action against the Applicant, concerning events occurring within the last ten years. I draw an inference that his conduct was not of a seriousness nature that required charges being laid. Or, that the alleged victim(s) did not consider further action was necessary.
I agree with the Respondents submission that the Applicant's conduct does not have to result in police action to be considered serious, and, that many good qualities possessed by a person, can be outweighed by a simple adverse incident of sufficient weight and seriousness (see Greene v Commissioner of Police, New South Wales Police Force). This is not the case in these proceedings.
I am not satisfied that the Applicant has shown no remorse or contrition for his offending and conduct. This is implicit in his concessions made about his drinking, his attempts at reformation of character and his claims of self-defence, where appropriate.
I accept that the Applicant may not have been the aggressor in each and every incident set out above. However, he was a participant. The incidents in the pubs and clubs appear to have resulted from the applicant saying something to others in an intoxicated state. The incident on the bus is also of a similar nature. However, it is not conclusive whether the Applicant is primarily at fault in each of these incidents. The highest the evidence establishes is that the Applicant was a participant and probably an equal aggressor in some circumstances caused by his verbal outbursts.
I have considered the Applicants evidence of his participation in an anger management course. I have also considered the references he submitted attesting to his good character. I note the President of the Wangi Wangi RSL club said the bus driver apologised for his actions. This infers he was partly at fault. This also supports the police findings that both were probably equal aggressors. I have given less weight to the references which do not specifically refer to the Applicant's conduct and physical altercations. It would appear that the Applicant, when sober, is a productive and valued member of the community. However, when he consumes copious amounts of alcohol, his demeanour changes.
I accept the Applicant's evidence that he has seen the errors of his ways and is now drinking less alcohol. He has also moved from the Wangi Wangi area, which he said, and I accept, had been a factor contributing to himself becoming embroiled in the altercations at the Paxton Hotel and RSL club. It is clear he has committed to alter his ways and change his lifestyle. This weighs in his favour.
The applicant has held a firearms licence for a long time since 2004, without incident. The fact that the Applicant's behaviour does not relate to him holding, using, or threated use of a firearm, also weighs in his favour
The Applicant's personal interest in having a firearms licence cannot outweigh the public interest. The public's right to safety must take precedence (see - Huckel v Commissioner of Police, New South Wales Police Force [2008] NSWADT 347 at [41] and Hill v Commissioner of Police, New South Wales Police Force Service [2002] NSWADT 218 at [22]).
I accept the Respondent's that there is no need to positively establish that there has been a past misuse of firearms, rather, it is whether he may in the future misuse a firearm. And, whether he can be trusted to use a firearm in the future.
I also accept the Respondent's submission that there is no requirement for charges to have been laid or convictions recorded. The Tribunal can evaluate and weigh the evidence when considering the Applicant's propensity to consume alcohol and his associated social behaviour.
The Respondent's submitted that there are two matters of concern which included repeated incidents of aggressive behaviour, even where he may not have been the aggressor. The two most recent incidents are close in time and both involve alcohol. This is true. However, the Applicant says he has not been drinking but he has not obtained any professional assistance. He gives his own assertion he is drinking less. Therefore, the Respondent submits that Tribunal should attach less weight to this evidence. I decline to do so. I am satisfied and accept the Applicant's unchallenged evidence about him drinking less.
In Greene's case the examination of risk is relevant. The Respondent submits it is of particular concern that the Applicant sought to blame others.
In assessing the risk of the Applicant misusing firearms, and whether the correct and preferable decision is that he should have had his firearms licence revoked, I find that the evidence weighs in favour of the Applicant being able to hold a firearms licence.
In my view, the material leads me to the conclusion that at this time it is in the public interest for the Applicant to be hold a firearms licence. I am satisfied that there is virtually no risk to the public in the Applicant having access to firearms.
[11]
Fit and proper person
Similarly, I find that the Applicant is a fit and proper person to hold a firearms licence. The nature of the Applicant's conduct, while at times socially unacceptable, is unlikely to continue to occur because of the steps he has taken to address his past conduct, or at a minimum, I am satisfied that the general community can have confidence that it will unlikely occur in the future.
It follows that the Respondent's decision to revoke his firearms licence should be set aside. The effect of that decision is to restore the Applicant's licence.
In these circumstances, the correct and preferable decision is to set aside the Respondent's decision.
[12]
Order
1. The requirement for an internal review is dispensed with pursuant s55(6) of the Administrative Decisions Review Act 1997.
2. The time for filing the application is extended to 1 September 2022.
3. The decision under review is set aside.
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 June 2023
Parties
Applicant/Plaintiff:
Jobson
Respondent/Defendant:
Commissioner of Police
Cases Cited (11)
Applicable legislation
Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred by section 75 of the Firearms Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Firearms Act and the ADR Act.
The Firearms Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Firearms Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Section 3(1) provides:
(1) The underlying principles of this Act are:
(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, and
(c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter. The Firearms Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:
[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 24(2) of the Firearms Act provides as follows:
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 provides that "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold a licence".
Fit and proper person
The Commissioner must not allow a firearms licence to be held by Applicant if satisfied that the Applicant "is no longer a fit and proper person to hold a licence": s 24(2)(c) of the Firearms Act.
It is clear from those provisions that being a fit and proper person is a central consideration in the firearms licensing regime.
In discussing the meaning of the expression "fit and proper person", Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321:
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, 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 (see - Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184).
Public interest considerations play a role in the assessment of fitness and propriety (see - Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]) and Smith at [30]).
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety" (see - Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).
The public interest
The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:
"The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation."
In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:
"The 'public interest' allows, we consider, for 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."
In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated:
"There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."
This approach has been applied consistently in matters where the reviewable decision is to revoke a licence. That is, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.
Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] - [28] Deputy President Hennessy said that in terms of public safety:
"27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.
28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
Ward v Commissioner of Police dealt with the issues of whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 paragraphs [64] - [66].
The material before the Tribunal
As noted, the Respondent relies on two bundles of material filed pursuant to section 58 of the ADR Act ("the section 58 documents") (Exhibit R1 and R2), a statement Senior Constable Boyd - 9 December 2022 (Exhibit R3), a statement SC Naughton 16 January 2023 (Exhibit R4) and written submissions. A decision in Greene v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 391 is also included.
The Applicant relies on a bundle filed 13 February 2023 (Exhibit A1) his application and annexed documents. The Applicant' solicitor and the solicitor for the Respondent made oral submissions at the hearing.
In determining these issues, 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 considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
The Respondent has lodged a bundle of documents pursuant to section 58 of the ADR Act. Section 58(1)(b) of the ADR Act requires the administrator whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application, a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal.