Kopko v Commissioner of Police, New South Wales Police Force

Applicable legislation

1. Among the objects of the Firearms Act 1996 (the Act) is the provision that strict requirements must be satisfied in relation to the licensing of firearms and the acquisition and supply of firearms: s 3(2)(d). It is an offence under s 7A of the Act to possess or use a firearm unless the person is authorised to do so by a licence or permit. A category A or B licence authorises the licensee to possess or use the firearm to which the licence applies, but only for the purposes established by the licensee as being the reason for possessing or using it: s 8(1).
2. The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest: s 11(7). Section 24 sets out a number of grounds on which the Commissioner may or must revoke a licence, including "(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 the licence".
3. The issue in this matter is thus whether it is not in the interests of the public for the applicant to hold a firearms licence while her son John Paul Kopco is residing with the applicant.

The evidence

1. At the hearing the applicant adopted her affidavit sworn on 16 February 2018 attaching a signed statement as an annexure. The respondent consented to the tender of the affidavit provided it was received on the basis that much of the content consisted of submissions rather than statements of fact. I accepted that proviso and will refer only to the factual propositions at this stage.
2. The applicant stated that there was no ground for any concern that she would allow access to her firearms to her son or would in any way contrive to allow him unauthorized access to them. There is no reason to believe that her son would coerce or force her into giving him unauthorized access to her firearms. Nor was there any reason to believe that she would not personally exercise continuous and responsible control over firearms because of her way of living or domestic circumstances. There had been no change of circumstances or situation of family responsibilities in relation to firearms since the issue of the earlier internal review statement of reasons on 14 March 2014. Neither her own conduct, nor that of her son, could give rise to any adverse impact on public safety.
3. Her absence from the property for what the respondent described as "extended periods of time" in no way compromised the security in which her firearms were stored, and the degree of safety it provides remains constant. Further, John Kopco has no desire to acquire or possess firearms. He commenced residence with the applicant from June 2017, and the charges for the current matters were preferred against him on 24 January 2017. The Commissioner took no action for nine weeks, until the applicant's firearms were seized on 4 April 2017. During that period no attempt was made by her son at any time to access her firearms, either by request or attempted manual manipulation of the keypad combination lock to her firearms safe.
4. In oral evidence-in-chief at the hearing, Mrs Kopco explained that she and her husband live on their 100-acre [40.4 ha] property which is situated near Stroud, about 30 km from Raymond Terrace, and use it for raising livestock. The area is somewhat remote and is beset by masses of vermin, including wild dogs, foxes, rabbits and rats. She needs firearms for use on them, and also on occasions when it is necessary to put down a farm animal. She also engages in hunting, often with neighbours, in an effort to control the packs of wild dogs in the area.
5. The licence was suspended on 1 April 2017 because her son lives with her, the charges having been brought some months previously. Her licence was suspended on 4 April and special conditions were imposed banning the storing of firearms in any place where her son lives. The offences currently pending against him are expected to come to trial in May 2019. His bail conditions require him to live with his parents. On 21 September 2017 the decision was varied and the special conditions were replaced by a refusal to renew her licence. She stressed that she has no criminal convictions.
6. The applicant said her son could not gain access to her firearms because of the electronic keypad, to which only she has the code. She does not carry it in her head but can only remind herself of it by standing directly in front of the keypad and studying it. Her son could not gain access to the safe, as he could not forcibly break into it and would not seek to do so in any event. She acknowledged that she is sometimes absent from the property on rare occasions when one of her other sons in Sydney needs her to babysit. Usually in such cases, though, she and her husband will arrange to collect the child in Sydney and return with him or her to the farm.
7. Vermin control is a major issue as regards their livestock, and the property is now fully overrun. Formerly they used to have 76 goats and between 10 and 12 beef cattle, but they have had to reduce stock numbers so that they can keep them where they can see them. Now they only have 6 goats and 6 cattle. She is not financially dependent on income from the property as her husband is in full-time employment, but she regards it as her "lifestyle".
8. In recent times her son John has been "there a fair bit" because he suffered an injury in his work as a carpenter, but he will be returning to work when he has recovered, and his employer is awaiting his return. For the most part he is not at the property except in the evenings. At weekends he is out with his partner.
9. In cross-examination the applicant said that vermin can come onto the property at any time of the day or night, but was especially common around dawn. For effective control it was necessary to have ready access to firearms. Asked if her son could return to the property unannounced, she replied that he would not do so when he is working. If he did, or indeed if anyone came, she would promptly lock away her firearms.
10. Raymond Terrace is about half an hour's drive away from the property, but they do most of the grocery shopping at Medowie, which is 20 minutes distant. Her husband does most of the shopping and she does not herself often leave the property.
11. The applicant also tendered an affidavit by her son John Paul Kopco sworn on 16 February 2018 (exhibit A2). In it he deposed inter alia that until 9 June 2017 he had been living at his home in Mayfield. On 24 January 2017 he was charged with having committed child sexual offences, charges that he had vigorously denied and was presently strenuously defending. The offences are alleged to have occurred between 1 December 2016 and 23 December 2016.
12. He had previously held a firearms licence until July 2013 when, without making any admissions, he had consented to an apprehended domestic violence order (ADVO) that had been issued by his sister-in-law's ex-partner against him. That order was in in place for a period of 2 years. Following the making of that order, his firearms licence was cancelled and his firearms were taken away by police. He had not held a firearms licence since July 2013, and currently has no interest in firearms or their use.
13. When he had held a licence, he owned a .22 rifle and an air gun. He had a firearms safe at his home at Mayfield and used to spend some time on his parents' property. Firearms safes were installed at his parents' home, one for the storage of the guns and one for ammunition. Each of the firearms safes at his parents' home had an electronic keypad, the combination of which was known only to his mother.
14. His mother had obtained a firearms licence at the same time as he had, and until July 2013 he and his mother shared the use of his firearms. When he visited his parents' property at Allworth, he and his mother would participate in some shooting of vermin on the property.
15. When his firearms were taken by police in July 2013, his mother tried to have the firearms transferred into her name, but the police placed many obstacles in the way of the transfer and it was a considerable time before it was effected. In the meantime, his mother purchased a .22 rifle and an air rifle herself, as it was necessary to have a gun on the property for the control of vermin. He and his mother also participated in recreational shooting before he lost his firearms licence.
16. In April 2017 his mother's firearms were seized on the ground that he had been charged with offences that prohibit the use of firearms, and as he was bailed to live from time to time at his parents' place of residence, the police used that fact to seize his mother's firearms.
17. From the time he lost his firearms licence as a result of the ADVO that he consented to without admissions, he had not used firearms of any kind whatsoever and had no interest in using them. He would not in any way compromise his mother's firearms licence by using her firearms, and he had never had access to them, as the combinations to each of the firearms safes at her property are unknown to him.
18. He has no criminal convictions and the allegations he is defending do not involve violence of any nature, and there was no physical injury to any of the alleged victims of the charges he is defending. He is well aware that it would be a breach of his bail conditions if he were to have any contact with firearms, and he did not wish to breach his bail conditions. The deponent was not required for cross-examination.
19. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1), some additional documentary material (exhibit R2) and confidential exhibit CR3. A confidential hearing under s 49(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) was held for the purpose of adducing that evidence.
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Applicant's submissions

1. The applicant filed written submissions on 23 April 2018. As the internal review decision had referred to s 11(4) of the Act (need to maintain continuous and responsible control), part of the submissions dealt with that sub-issue. At the hearing, however, the respondent relied only on the public interest ground, s 11(7), and there is consequently no need to outline the applicant's case on s 11(4).
2. The submissions also pointed out inter alia that the internal review gave weight to the applicant's unblemished history with firearms for approximately five years and that the only adverse actions taken on her licence had resulted from concerns in relation to her son. There was consequently no suggestion that the applicant is not a fit and proper person, in her own right, to hold a New South Wales firearms licence. That was also acknowledged in the earlier internal review decision of 10 March 2014.
3. The reasons for refusal to renew were therefore confined to issues regarding her son, John Paul Kopko, who is awaiting trial in the District Court on charges of a sexual nature and whose bail conditions require that he resides at the applicant's farm, unless in the company of his father or another specified person. The decision stated that this adverse information had to be taken into account as well as the risk to public safety posed by the possession and use of firearms at her property.
4. The 2017 review decision also noted that the charges relate to very serious offences that are prescribed by the firearms legislation and which in the event of conviction would prohibit her son from possessing or using firearms for 10 years. "Further," the decision continued, "I cannot ignore the opinion of police who, based on information known to them regarding the manner of your son's behaviour which raises the possibility of risk to the public, recommended placing special conditions on your licence".
5. The applicant's firearms security had been inspected on a number of occasions without adverse comment. Her firearms safe utilises a current keypad and she is the only person who has the combination in her head. The 2014 internal review decision found that she had not and never would allow her will to be overborne by anybody, particularly her son, and allow anyone else access to the gun safe: "Police records hold no evidence upon which to base such a conclusion [that her son could coerce her into giving him unauthorized access] in relation to your son or yourself". The applicant submitted that the same personae and circumstances existed now as did in 2014.
6. As regards the public interest ground based on s 11(7) of the Firearms Act, the applicant submitted that it was difficult to see how a public interest question arose, when it had been conceded in 2014 that the Commissioner had no evidence indicating any likelihood that John Paul Kopko could or would attempt to coerce access to the applicant's firearms. The "adverse information", "manner of son's behaviour" or "opinion of police" in the 2017 decision suffered from not being particularised in any way. Nor did the applicant spend extended periods away from the property.
7. Given that the son had no convictions, is 36 years old and is subject to defended proceedings in the District Court which do not involve violence, and in 2013 consented to an ADVO without admissions, also not involving violent or aggressive behaviour, the alleged public interest grounds could not exist. In the circumstances the evidence had failed to reveal any risk to the public if the applicant were re-issued with a firearms licence and the respondent's argument under s 11(7) could not succeed.
8. At the hearing Mr Sundstrom reiterated those points and submitted that the core issue was the risk to the public because of the presence of her son at the property, where he was bound to live as part of his bail conditions. In relation to the evaluation of risk, he submitted that in firearms cases the Commissioner had a tendency to quote the "virtually no risk" passage in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] as if it were an absolute test that would be virtually impossible to satisfy. In Laing v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 315, [62]-[64], the tribunal had summarised the cases dealing with risk and had reached the conclusion that Hennessy DP's comment in Ward was viewed in a nuanced way taking into account all the circumstances. Only real and appreciable risks could carry substantial weight. In this case the risk was negligible or zero. The 2014 internal review decision had found that there was no evidence of any likelihood that the son would force or coerce the applicant into giving access to her firearms. The reviewer therefore withdrew the special condition.
9. If John Paul Kopko were to be convicted on the current charges, he would be disqualified from holding a licence, but he is strenuously defending those proceedings. But at this stage the only relevance of those proceedings was the interim ADVO that applies to him while awaiting trial. As the issuance of an ADVO in such circumstances is automatic, any reliance on it would be a technical argument only. There had been no change in circumstances since the 2014 decision, and that decision undermined the respondent's position on that issue. It was hard to see how we could get from a special condition to a failure to renew. It was just a knee-jerk reaction that stood in stark contrast with the 2014 decision.
10. The evidence disclosed no reasonable cause for finding any risk to public safety. Tolley v Commissioner of Police, New South Wales Police [2006] NSWADT 149 should be distinguished as in the present case there was no evidence to support a finding of risk. A further lacuna in the respondent's case was that it alleged disqualifying offences prescribed by cl 5(1)(e)(i) of the 2017 Regulation for the purposes of s 11(5)(b), but those offences required a conviction. Conviction would strengthen the respondent's case, but not necessarily to the extent of refusal. No violence had been alleged, and there was a logical leap involved in transferring that consideration to his mother's case.
11. If the applicant were to succeed in the current proceedings, she would seek costs as agreed or assessed, as the respondent had an earlier decision which would have obviated the need for the present review. There had been no change or new evidence after 2014.

Consideration

1. This tribunal has jurisdiction to review the refusal or revocation of a firearms licence by the Commissioner by virtue of s 75(1)(a) and (c) of the Firearms Act. The tribunal's role is to review the decision that is the subject of Mrs Kopco's application, standing in the shoes of the original decision-maker. It 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.
2. 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: 63(1) Administrative Decisions Review Act 1997; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
3. 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.
4. Section 11(5A) further provides that a licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that (a) the person is a risk to public safety and (b) the issuing of the licence would be contrary to the public interest. The Commissioner may also refuse to issue a licence if the Commissioner considers the issue of the licence would be contrary to the public interest: s 11(7). That is the provision on which the Commissioner relies in this case.
5. The standard of proof that applies in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. There is, however, no burden or onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]. The civil standard applies even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449).
6. The tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60]
7. In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
8. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: 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 Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
9. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They 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, [33]. Public safety is obviously of primary importance in the present case.
10. The respondent does not argue that the applicant herself presents any danger to the public interest. On all the evidence she is a woman of excellent character, with an unblemished record, including in relation to firearms regulation and good practice. The 2014 review decision pointed out that there was no evidence to suggest that her will could be overborne by her son, or anyone else, who might wish to obtain unauthorised access to her firearms storage.
11. Her demeanour at the hearing suggested a person of stable temperament and firmness of purpose. She is well aware that giving way to any blandishments aimed at obtaining access to her firearms would jeopardize her licence and make her liable to prosecution. Her concern for the welfare of her son John would tend to reinforce her determination not to allow him to take unlawful possession of her firearms, especially given the possibility, remote or not, that they might be used for an unlawful purpose and therefore lead to even more serious consequences for him.
12. The respondent's case turns largely on the possible risk stemming from the fact that the son's bail conditions require him to live at his parents' property where the firearms are stored. Mr Campbell submitted that he might arrive home unexpectedly at a time when the applicant was using the guns to control vermin. Mrs Kopco testified that if that were to happen, she would immediately lock them away, but it is not hard to imagine possible scenarios whereby he could take possession of one or more firearms in such circumstances.
13. Such considerations require focusing on the question of risk to public safety. The respondent relied on Hennessy DP's comments in Ward at [28] where her Honour said that in considering public safety under the Act, "the Tribunal must be satisfied that there is virtually no risk" to public safety, while acknowledging that it would never be possible to be sure that a person presented absolutely no risk. That case dealt with the "fit and proper person" criterion, 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, [130] - [134].
14. Mr Sundstrom submitted that the Commissioner had a tendency in such cases to treat the phrase "virtually no risk" as an absolute obstacle that was almost impossible to overcome. He relied on Laing v Commissioner of Police, New South Wales Police Force in which I had made the following observations at [63] to [65]: 63 Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML [AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5] in 2013 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]). 64 Other cases have pointed out that 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, [64] - [66]. 65 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].
15. An example of the tribunal's nuanced approach to the risk factor is Mewborn v Commissioner of Police, New South Wales Police Force [2009] NSWADT 24 in which the tribunal set aside a refusal to grant a licence to an applicant convicted of assault causing actual bodily harm, who had contravened an AVO and had a history of domestic disputes and arguments with neighbours. He had, however, removed himself from the stressful relationship and from his neighbours. None of the incidents had involved firearms and he had a responsible attitude to guns. The tribunal considered him a fit and proper person to hold a licence.
16. The question is thus whether, as Montgomery JM put it, there is in all the circumstances a real and appreciable risk to the public (including risk to the son himself).There is no evidence that the applicant Mrs Kopco presents any risk to public safety, and the respondent did not argue the contrary. John Paul Kopko is the issue.
17. Aged 36, he has no criminal convictions and no record of firearms contraventions or misuse, whether during the period when he held a licence or subsequently. He was investigated in connection with child sex offences in 2014, but the charges were withdrawn. The child sex charges on which he is awaiting trial, serious though they are, involve no allegations of violence or threats of violence. There is no record of psychiatric disturbances or treatment, nor of any suicidal ideation. Though he is required by his bail conditions to live at the property, he is often absent, including at weekends, and is mainly there at night.
18. The 2014 internal review found no evidence to suggest that he would attempt to obtain unauthorised access to the applicant's firearms. The applicant is a person of stable personality and is the only person with access to the keypad code for the gun safe - and even she has to make a concerted effort to remember it. She is not often absent from the property as her husband does most of the shopping for supplies For a variety of reasons, including her son's own good, she would be unlikely to give him access to her firearms, and he would be unlikely to attempt to use force to obtain it, having no history of violent acts. The ADVO to which he is currently subject pending his trial is automatic and says little about any propensity for violence. On the basis of the open evidence, it appears that there is no significant risk of danger to the public.
19. In addition, there is a public interest in enabling persons with the necessary aptitude, capital and expertise to engage in primary production. The applicant has been operating a serious farming or grazing enterprise, with 76 goats and between 10 and 12 beef cattle. Their stock holdings have now been reduced to about six goats and six head of cattle because the property is, as she puts it, completely overrun with vermin, with the result that they have had to limit their livestock holdings to small numbers so that they can keep them where they can see them.
20. For farmers and graziers in rural New South Wales, long arms are a practical necessity, especially in relatively remote areas such as the one where the applicant's property is located. Any significant primary production is virtually impossible to sustain without them. The respondent points out that Mrs Kopco describes the farm as constituting her "lifestyle", and submits that it is not a matter of economic necessity for her to operate it, as her husband is in full-time employment. Be that as it may, it is nevertheless no mere hobby farm and it is in the public interest that developed rural land should be put to productive use. The applicant is well qualified to do that. While the public interest in safety takes precedence over an applicant's private interests, if the risk is only minimal or theoretical the scales may be more evenly balanced.
21. On the basis of the open evidence, therefore, the applicant can in my view make a respectable case for the return of her firearms licence. That, however, still leaves the matter of the confidential evidence.
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26. Although the applicant has not had the opportunity of testing the confidential evidence, its importance and weight are considerable. Taking the confidential evidence with the open evidence, therefore, I find that the issuance of a firearms licence to the applicant in the present circumstances would entail a slight but significant risk to public safety and would therefore not be in the public interest.
27. I say "in the present circumstances" because the respondent's concerns could be seen as deriving largely from the criminal charges currently pending against John Kopko, their effect on him, and the bail condition that requires him to live at the applicant's property where the applicant's firearms are stored. The charges are expected to go to trial in May 2019. The conclusion of those proceedings could conceivably reduce or resolve the problem of risk, as on some possible outcomes, John Kopko might no longer be required to live at the property and could return to his house at Mayfield or, alternatively, might be prevented from living at the property.
28. In the present circumstances, however, I find that it is not in the public interest for the applicant to hold a firearms licence. The decision under review is affirmed.

Orders 1. The decision under review is affirmed. 2. Pursuant to ss 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013, the transcript and recording of the confidential hearing, confidential exhibit CR3 and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

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: 07 June 2018