Kopko v Commissioner of Police, New South Wales Police Force

Consideration

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.
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.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is "conditional on the overriding need to ensure public safety". Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
Section 11(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.
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).
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]
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.
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.
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.
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.
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.
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.
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].
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].
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.
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.
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.
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.
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.
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.
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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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.
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.
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.

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Judgment (7 paragraphs)

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Cases Cited (12)

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