Lansdowne v Commissioner of Police, NSW Police Force

Notice of Special Condition

1. On 6 July 2012 a report was sent to the Firearms Registry and the Applicant was subsequently issued with a Notice dated 10 July 2012 that the following Special Condition had been placed on his licence: "That your firearms not be stored at [the City property] or anywhere your [younger son] can access the firearms."
2. The Applicant was advised that he would be required to organise alternative safe storage arrangements for his firearms and that his suspension would not be lifted until a safe storage inspection had been conducted. On 10 July 2012, the suspension was lifted and on 7 August 2012, the Applicant's firearms were collected by SSAA St Marys for safe keeping by them.

Respondent's submissions in relation to purported breach of the Special Condition

1. It was contended in the Respondent's written submissions that per the Applicant's evidence and evidence from the Respondent, that the Applicant did not deny that the firearms were stored at his City property at various times after the Special Condition was imposed. The Respondent noted that the Special Condition provided no ability for the Applicant to store the firearms at the City property even if the Applicant's younger son did not reside there and as a consequence, the Applicant had breached the Special Condition.
2. During the hearing, the Respondent's documentary evidence (exhibit R1) indicated that on 4 October 2017, the Applicant submitted a change of details form to the Respondent advising that his new safe storage address was the City property, and it appears that at that time, at least one of the Applicant's firearms was still stored at SSAA St Marys. A further change of details form to the same effect was submitted by the Applicant on 7 December 2017 and he replied "Yes" to the question relating to whether all of his firearms were stored at the City property. COPS Event Ref No: E68745438 indicated that a safe storage inspection of the Applicant's firearms safe at his City property was conducted by police on 14 August 2018. The Applicant passed the inspection and the report indicated "no further police action". Further documentary evidence from the Respondent indicated that on 10 March 2022, the Applicant called the Firearms Registry and updated his residential address and safe storage address for his firearms to a property he owned in southeast NSW (Rural property).
3. Given that there appeared to be inconsistencies between the Respondent's written submission in relation to the interpretation of the Special Condition and the material relied upon by the Respondent, and in particular the safe storage inspection of the City property in 2018, directions were made to allow the Respondent the opportunity to provide further information in relation to the Special Condition. In accordance with this direction, the Respondent provided an email that included the following: "We confirm our instructions that the Firearms Registry's position is that the [Applicant] can store firearms at his [City property] as long as [the Applicant's younger son] doesn't live or frequent there. This is consistent with (local) police conducting a safe storage check in 2019 when the firearms were stored at the [City property]."
4. It would appear from the evidence that the safe storage inspection of the City property took place in 2018, rather than 2019. However, I am satisfied that in light of the Respondent's email, that the Respondent no longer contends that the Applicant breached the Special Condition solely on the basis of storing his firearms at his City property. Whilst in my view, the ordinary meaning of the Special Condition is that the Applicant is prohibited from storing firearms at any time at his City property, I accept the concession made by the Respondent, and that in light of the documentary material referred to above, that the concession was reasonably and appropriately made.
5. Had the Respondent not made this concession, and notwithstanding my view as to the ordinary meaning of the Special Condition, it is clear that the Respondent's actions from October 2017 would have reasonably led the Applicant to understand that he was permitted by the Respondent to store his firearms at the City property, provided that his youngest son could not access them. This view is consistent with the Applicant's evidence as to his understanding of the Special Condition. In these circumstances, the Applicant's actions in storing his firearms at the City property at times when his younger son was not living at, or frequenting, the property could not have been found to constitute knowing breaches of the Special Condition.
6. In any event, given the Respondent's concession on this issue, I give no further consideration to whether such a breach occurred, and my further consideration of this ground is limited to whether or the Applicant has breached the Special Condition by storing his firearm anywhere, including the City property, where the Applicant's younger son could access the Applicant's firearms.

Further consideration of purported breach of Special Condition

1. The Respondent relied on the documents from the Roads and Traffic Authority (RTA) database relating to the address history for the Applicant's younger son (part exhibit R1). These records show the City property as the residential address for his younger son from 2 September 2005 through to 28 April 2021. For the period 28 April 2021 to 18 July 2021 his residential address is recorded as the Rural property and his mailing address as the City property. From 18 August 2021 to 29 August 2023, the date of the report, he is variously recorded as having his mailing and residential address at either the City property or the Rural property. Records were also adduced for the RTA address history of the Applicant's older son.
2. The Applicant's evidence was to the effect that just because his sons had the City address or the Rural address as their address in the RTA records did not mean that was this was where his sons were actually living at that time. He said that both of his sons used the Applicant's address for their driver licences. In his evidence in relation to his older son, the Applicant stated that his address was used, so that in the event of a motor vehicle accident by his older son, there would be someone to notify. In the Respondent's written submissions, it was conceded that it is difficult to determine with certainty the exact periods when either of the Applicant's sons resided at the Applicant's properties. It was also noted that, based on the material from both the Applicant and the Respondent, various persons including his sons and other relatives at times reside in tents or caravans on the properties as well as in the premises.
3. Having regard to the Applicant's evidence, I accept that his sons, including his younger son, may have been at the Applicant's City property or Rural property at various times but did not necessarily live at the addresses recorded in the RTA records during the recorded dates. Accordingly, I find that the RTA records, of themselves, do not establish a breach of the Special Condition by the Applicant.

2016 Incident

1. COPS record event Ref No: E 60805464 (2016 COPS record) refers to an incident at the City property on 5 March 2016 (2016 incident). The 2016 COPS record indicates that on that date, the Applicant called the police to advise that his younger son had just assaulted his older son. It is recorded that the Applicant said that he had locked up his firearms and also that his younger son would "go" for police, so they would shoot him. The Applicant is recorded as again calling police to advise that his younger son had left and was on his way to Morisset and requested that the job be cancelled as things had calmed down. He was advised that police would still attend as it was a "domestic".
2. The Narrative Details record that about 11.30 on 5 March 2016, the Applicant's younger son had returned to the Applicant's City property "as he is currently residing there" until he obtained further accommodation. At that time, the Applicant's older son was visiting the Applicant. The Applicant's younger son had become upset due to a relationship failure and the Applicant, and his other son, attempted to calm him down. Due to his intoxication, the Applicant's younger son became verbally abusive, and sometime later became involved in a "push and shove" with his older brother. Whilst waiting for police to arrive, the Applicant is recorded as having called a friend of his younger son, who agreed to take him back to his premises. The Applicant's younger son then left the City property without further incident. When police attended, the Applicant and his older son advised that they did not want any further action and accordingly, a record was created by the police with no further action taken.
3. The 2016 COPS report refers to the Applicant as having locked up his firearms and makes reference to "Not AA", which seemingly refers to 'not at address'. The Applicant's safe storage address for his firearms at this time was SSAA St Marys. There is no evidence that the Applicant had removed his firearms from that location at the time of the 2016 Incident or that the firearms were sighted by police at the City property. The Respondent did not contend that the Applicant contravened the Special Condition at this time, and having regard to the totality of the evidence in this regard, I am satisfied that there was no contravention of the Special Condition by the Applicant during the 2016 Incident.

2021 Incident

1. COPS report Event Ref No : E81010434 (2021 COPS report) records that on 2 June 2021 (2021 Incident), the Applicant telephoned police from the Rural property and advised them that his son was going crazy and had smashed up the house. It was recorded that "can hear POI saying he will kill Inft - has knife".
2. The further Narrative details indicate that police attended the Rural property. In the 2021 COPS report, the Applicant is recorded as "NoK" which I understand to be 'next of kin'. The Applicant's youngest son is recorded as "PAT", which I understand to be 'Patient'. It is recorded that the Applicant's younger son has been diagnosed with depression and mood swings which he is medicated for and that he had attended the Rural property "where he and his brother live at times". The Applicant's older and younger sons had been at the location for a few days with the Applicant looking after his younger son. It was recorded that the three had worked on a number of vehicles before attending the main house to make dinner. During this time, the Applicant's younger son became upset with the other two and grabbed a knife, held it against his own throat, making threats to slice his throat, and then making superficial cuts to his neck and wrist. At the same time as the Applicant contacted police, the Applicant's older son wrestled the knife from his brother, who then began to damage the dining table and throw empty soft drink bottles before walking out of the house.
3. It is recorded that police arrived shortly afterwards and spoke with the Applicant who was said to have provided the information referred to above and is recorded as stating that he was seriously concerned about his younger son hurting himself. The Applicant advised that he had previously made "attempts for suicide by cop." Police then enquired as to any weapons that he might have and were informed by the Applicant that they were all accounted for. Police later found the Applicant's younger son asleep in a vehicle on the property. Following discussion, the Applicant's younger son was taken to a local hospital without incident.
4. On 11 August 2021, the Applicant made an application to renew his firearms licence (part exhibit R1). No changes to his safe storage or residential address were indicated in that application. On 18 August 2021, COPS record Event No: E 83547362 (August 2021 COPS report) records that as a result of enquiries made into the 2021 Incident, a Notice of Suspension of the Applicant's licence was issued in relation to a contravention of the Special Condition. The Notice also referred to other grounds being "Living Domestic circumstances" and "Not in the Public Interest".
5. On 28 August 2021, police attended the City property in relation to the Notice of Suspension and were advised that the Applicant's younger son was living in a caravan at the rear of that property. Police were told that the Applicant had relocated to the Rural property and taken his firearms with him. Later that evening, police spoke to the Applicant who confirmed that he was at the Rural property together with his firearms. He indicated that he would be staying at that property for an extended period, or at least until COVID-19 restrictions were eased. On 9 September 2021, police attended the Rural property and served the Notice of Suspension on the Applicant and seized his firearms. The Applicant indicated that he would be initiating a court case to have the firearms returned.
6. On 22 February 2022, the suspension of the Applicant's firearms licence was lifted, with a backdated licence issued to him. The letter sent to him by the Firearms Registry on that date included a specific reminder to the Applicant of his Special Condition. The Applicant was advised to contact police to arrange a time to collect his licence and firearms and that police must be satisfied that the Applicant has complied with the Special Condition prior to returning his firearm. The letter included the following: Should you come to any further adverse attention in respect of non-compliance with the above special condition the revocation of your firearms licence will be strongly considered.
7. As previously referred to, the Applicant updated his safe storage address on 10 March 2022 to the Rural property and on 17 March 2022, police conducted a safe storage inspection of that property. The Applicant's firearms were returned to him on 17 November 2022. It would appear that police at that time were of the view that the Applicant had not breached the Special Condition at the time of the 2021 Incident.
8. The 2021 COPS report refers to the Applicant stating that all his weapons were accounted for. The Applicant gave oral evidence at the hearing that at times he moved his firearms between the City property and the Rural property. Whilst an inference could potentially be drawn that the firearms were at the Rural property at the time of the 2021 Incident, there is no evidence that police sighted the Applicant's firearms when they attended the property at that time. The Applicant gave further evidence at the hearing that when his younger son was at the Rural property, his weapons were not. Having regard to the available evidence I am not satisfied that the Applicant breached the Special Condition at the time of the 2021 Incident.

2023 Incident

1. COPS record Event Ref No: E 92513932 (2023 COPS record) indicates that on 8 February 2023 a bail check for the Applicant's younger son was carried out at the Rural property (2023 Incident). The Narrative records that at that time, the Applicant's younger son had recently been granted bail after being in custody and was then subject to various bail conditions including "residence/curfew" at the Rural property. The inmate copy of the Bail Acknowledgment dated 3 February 2023 was included in the Applicant's material (part exhibit A1) and sets out the various bail conditions applying to the Applicant's younger son.
2. The 2023 COPS report records that police spoke to the Applicant and his younger son at the Rural property who both confirmed they were aware of the Special Condition and indicated that they had anticipated the arrival of police. The Applicant is recorded as stating that he was not aware of any other location that he could safely store his firearms, but he would endeavour to make enquiries with "Braidwood Outdoors". Due to the Applicant's failure to comply with the conditions on his licence, the licence was suspended, and his firearms seized. The Applicant's licence was subsequently revoked by the Respondent, with the decision being affirmed following an internal review. It is this decision that the Applicant seeks to have reviewed by the Tribunal.
3. In his application for internal review of that decision dated 22 June 2023, the Applicant wrote as follows: "Requiring a review on the revocation of shooters licence as I have tried to comply as best as possible to the conditions. My firearms were surrendered for safekeeping as soon as possible to the Braidwood Police Station as I could find nowhere else to store them. If this is not acceptable as an action to comply with licencing, please refer me to the Tribunal."
4. Included in the Applicant's Brief of Documents was a letter dated 28 September 2023 from the Applicant's younger son confirming that he was released on Supreme Court Bail on 3 February 2023. He stated that he was supplied with a train ticket to Katoomba and that his mother picked him up from the station at around 6.30 pm and drove him to the Applicant's Rural property arriving at approximately 1 am on 4 February 2023. He stated that whilst at the property, he had no access to the Applicant's firearms as they were secured in the firearms safe.
5. The Applicant relied on a statement dated 6 October 2023. The signature is difficult to read but the author states that he or she was approached by the Applicant at his or her place of employment, the Braidwood Butcher Shop, on or about 6 February 2023 to ask if he or she was able to help the Applicant to find safe storage for his rifles. The author was unable to assist. A statement from the Applicant dated 6 October 2023 says that on or about 6 February 2023, he approached the owner of Braidwood Outdoors, a firearm, camping and sporting goods store, to enquire about safe storage of his firearms. He stated that unfortunately when he approached the owner again in October 2023, she could not "100% remember the conversation in February and wouldn't sign any paperwork for anyone anyhow".
6. In his oral evidence, the Applicant acknowledged that there had been a "technical" breach of the Special Condition arising out of the 2023 Incident. He stated that he had no chance to comply as the Supreme Court sent his son to live with him. He later gave evidence that the Special Condition related to his younger son and was put in so that he could not live at an address where the Applicant had his weapons. He said the only time that compliance was "not there" was when his younger son arrived at 2 am from Bathurst. The Applicant stated that he had made some phone calls in relation to safe storage for his firearms and that the firearms remained stored in his safe. He said that he did not get a chance to speak to police as the station is rarely manned. On a number of occasions, the Applicant referred to the Special Condition and stated that he did not understand why the Special Condition had been imposed and that his younger son did not have any contact with his weapons.
7. Having regard to the evidence, it is clear that the Applicant's younger son arrived at the Rural property in the early hours of 4 February 2023 and was required to reside there as a condition of his recently granted bail. The uncontested evidence is that from very early on 4 February 2023 up until around 11 am on 8 February 2023, the Applicant's firearms were stored at the Rural property at the same time that the Applicant's younger son was residing there.
8. The Applicant's licence had been subject to the Special Condition since 10 July 2012 and as referred to previously, his licence had been suspended in 2021 as a result of the 2021 Incident, with one of the grounds in the Notice of Suspension being "Contravened Provision of Act - Special Conditions". At the time of the lifting of the suspension, the letter from the Firearms Registry dated 22 February 2022 contained a specific reminder about the Special Condition and indicated that should the Applicant come to further adverse attention in relation to the Special Condition, the revocation of his licence would be strongly considered.
9. The Special Condition required that the Applicant's firearms licence not be stored "anywhere" where his younger son "can access the firearms". The wording does not require the Applicant's younger son to actually access, or to attempt to access, the Applicant's firearms in order to contravene the Special Condition and it is clear that he did not. The Special Condition is very broad, and the 2023 COPS report makes it clear that the Applicant was aware of the Special Condition and that both he and his younger son had been anticipating the arrival of police. In his oral evidence, the Applicant admitted to breaching the Special Condition but stated that it was a "technical" breach and that he had no chance to comply with the Special Condition. Whilst no evidence was given as to when the Applicant first became aware that his younger son had been granted bail and was required to reside at the Rural property, it is clear that he was aware of his younger son's presence at the property from at least the early hours of 4 February 2023 and that the firearms remained on the premises until the police attended on 8 February 2023.
10. I have had regard to the Applicant's evidence that he made contact with two people in relation to safe storage of his firearms, around 6 February 2023. The statement from the Braidwood Butcher Shop was made in October 2023, some six months after the 2023 Incident. The Applicant's evidence was that he also approached the owner of Braidwood Outdoors but that at that time she could not "100%" remember the conversation and would not sign any paperwork. The 2023 COPS report was made shortly after the 2023 Incident and makes no reference to the Applicant having made enquiries about safe storage for his firearms at that time but rather that he "would endeavour to make enquiries with Braidwood Outdoors." As a result, there is some doubt about when the Applicant made enquiries about potential safe storage of his firearms, and whether this occurred before or after police attended on 8 February 2023. In any event, I accept the Respondent's submission that making enquiries about safe storage does not constitute compliance with the Special Condition.
11. As referred to previously, the Applicant's request for internal review dated 22 June 2023, stated that he has tried to comply as "best as possible to the conditions" and refers to him surrendering his firearms "for safekeeping as soon as possible to the Braidwood police station as I could find nowhere else safe to store them". This statement does not accord with the events outlined in the 2023 COPS record or the other available evidence and it is possible that the Applicant has confused his actions with those relating to another incident in 2022. In any event, I do not accept that the Applicant surrendered his firearms to the Braidwood Police Station at any time between 4 February 2023 and 8 February 2023, and instead, I find that his firearms were seized by police when they attended his Rural property on 8 February 2023. I accept that both the Applicant and his younger son were co-operative and compliant with police at that time.
12. Whilst the Applicant had called the Firearms Registry on 10 March 2022, to update his residential address, there is no evidence before me that the Applicant communicated in any way with the Firearms Registry about his younger son's arrival at the Rural property, or that he contacted, or attempted to contact, police about the Special Condition on, or prior to, 8 February 2023. Having regard to the totality of the evidence, and in particular the admission made by the Applicant of a "technical" breach, I am satisfied that between 4 February 2023 and 8 February 2023, the Applicant contravened the Special Condition that had been imposed on his licence in 2012 by having his younger son reside at the Rural property where the Applicant's firearms were stored. Given that the Applicant had been reminded on 22 February 2022 of the Special Condition and the potential consequences of his non-compliance, I do not accept that the breach was merely a "technical" breach.

Issue of whether there is reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances

1. The Respondent relied on the circumstances of the 2012 Incidents together with the incidents occurring in 2016, 2021 and 2023 as outlined above. The Applicant did not seek to challenge that these incidents occurred or that the various COPS reports were generally not accurate. Further, the Applicant did not seek to challenge the police statements made by him and his wife in relation to the 2012 Incident. Whilst the Applicant gave evidence at the hearing that it was his wife who had called police in relation to the 2012 Incident, and that the Applicant did not view his younger son as a threat at that time, this evidence was given more than 11 years after the 2012 Incident. Given the amount of time that has elapsed, I prefer the account given by the Applicant and his wife in their statements to Police the day after the 2012 Incident to the effect, that it was the Applicant who called the police, and that the Applicant was scared by his younger son. Accordingly, I accept the accounts of the various incidents contained in the 2012, 2016, 2021 and 2023 COPS reports as well as the accounts contained in the police statements of the Applicant and his wife.

2022 Incident

1. The Respondent also relied upon COPS record Event No: E 91914556 (2022 COPS report) in relation to another incident that occurred on 14 November 2022 at the Rural property that involved the Applicant's older son and a family member (2022 Incident). The Applicant's older son resided at the Rural property at that time and the Applicant gave evidence that as of the date of the hearing, he remained living there. The 2022 COPS record indicated that police were told that the Applicant's older son had a previous history of violence and mental illness. The Applicant's evidence was that he was not at the Rural property at the time of the 2022 Incident and he adduced statements made by his older son, and another family member disputing some of the material in the 2022 COPS report. The Applicant's older son stated that he pleaded not guilty to the assault charge but, being his word against two others, he found it "simpler" to plead guilty. The Respondent relied on a copy of the Police Facts Sheet in relation to the charges arising from the 2022 Incident.
2. It was not disputed by the Applicant that as a result of the 2022 Incident, the Applicant's older son was charged and convicted in relation to possessing two small cannabis plants. He was also charged in relation to common assault, with the charge later being dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was also not in dispute that as a result of the 2022 Incident, the Applicant's older son was subject to an AV0 from 16 March 2023 until 15 March 2024, although this did not relate to the Applicant. It was also not in dispute that as a result of the 2022 Incident, the Applicant was required to surrender his firearms to police for the 28 day cooling off period and that he did so at the Braidwood Police Station. The firearms were returned to the Applicant on 21 December 2022 and no changes were made to the Applicant's licence conditions. I accept that these matters occurred in relation to the 2022 Incident and also that the Applicant's older son had been drinking home brewed beer on that day.

Criminal histories of the Applicant's sons

1. The Respondent submitted that it was also relevant to consider the long and extensive criminal histories of the Applicant's two sons. The Respondent relied on the criminal histories for both the Applicant's older son and younger son. The criminal history for the Applicant's older son indicated that his first offence occurred in 1995 and his most recent offences were those arising from the 2022 Incident. His offences included dishonesty offences; possession, cultivation and supply of prohibited drugs; break and enter offences; and driving whilst intoxicated.
2. The criminal history for the Applicant's younger son showed a history of offending that commenced in 2002 and included the following: 1. Obtaining money etc by deception; 2. Resist and intimidate police; 3. Stalking; 4. Assault; 5. Urge dog to attack; and 6. Property damage.
3. The Bail Acknowledgement dated 3 February 2023 adduced by the Applicant referred to further offences that the Applicant's younger son had been charged with as follows: 1. Common Assault (DV) x 2; 2. Use etc offence weapon w/i to commit indictable offence; 3. Contravene prohibition/restriction in AVO (Domestic); 4. Destroy or damage property (DV); 5. Assault occasioning actual bodily harm (DV); 6. Armed w/I commit indictable offence; 7. Stalk/intimidate intend fear physical etc harm (domestic); and 8. Assault officer in execution of duty.
4. A copy of the Police Facts sheet for these matters dated 14 November 2022 was included in the Respondent's s 58 bundle. It was not contested that the Applicant's younger son had been held in remand for these matters prior to him being given bail by the Supreme Court of NSW on 3 February 2023. The Bail Acknowledgement include a number of conditions, including reporting conditions, a condition that the Applicant's younger son not drink alcohol or take any illegal or prescription drugs other than prescribed by a medical practitioner.
5. A further Police Facts sheet was relied upon by the Respondent relating to an incident on 4 April 2023 following which the Applicant's younger son was charged with breaching his bail conditions by drinking alcohol. The Facts allege that after being placed in the caged section of the police vehicle, he immediately became aggressive and abusive, repeatedly punching and kicking the caged section of the vehicle. Upon arrival at the Police Station, it is alleged that he immediately became argumentative and aggressive toward the custody manager and police, and began intentionally hitting his head on the dock door.
6. As referred to previously, these offences had not been finalised by a court as of the date of the hearing of this review application and the Applicant's evidence was that they were to be heard soon afterwards. It was not disputed that the Applicant was required to reside at the Rural property whilst on bail and that he remained on bail at the time of these proceedings.

Consideration

1. The term "reasonable cause to believe" has been considered on a number of occasions. In LY v Commissioner of Police, NSW Police [2004] NSW ADT 115 at [41] - [43], the Tribunal stated that: 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.
2. In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal observed that given the breadth of the discretion and the overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. Consequently, the conduct of any person with whom the Applicant associates is a relevant factor in determining whether the Applicant may personally exercise continuous and responsible control over firearms: see also Emery v Commissioner of Police [2022] NSWCATAD 122
3. In Finlay v Commissioner of Police [2020] NSWCATAD 5 (Finlay), the son of Mr Finlay, the applicant in that matter, was subject to a firearms prohibition order following a number of criminal convictions and an AVO being imposed on him. Sometime later, Mr Finlay's son was charged with further offences and was subject to bail in relation to those offences. It was a condition of his bail that he reside with Mr Findlay at his residence. The police then imposed a special condition on Mr Findlay's firearms licence to the effect that firearms were not permitted to be possessed or stored at his residence or an address accessible by his son. Following an internal review, a decision was made to set aside the special condition and instead to revoke Mr Findlay's firearms licence.
4. The Tribunal in Finlay took into consideration at [56] -[60] a number of factors including the layout of the property, the security arrangements relating to the firearms safe, the movement of the occupants between dwellings, any history of breaking and entering offences by Mr Finlay's son and Mr Finlay's general record of enforcing control over firearms.
5. In the current matter, the Applicant gave evidence that the Rural property consists of 310 acres and that he and his two sons live in separate dwellings next door to each other, and that there were other dwellings on the property. The Applicant said that it was about 200 yards to a big storage shed where the weapons were stored. He said that his older son resides at the property, and that whilst the Applicant's younger son is living there currently, he will head back to Sydney once his court case is over. The Applicant referred to his need to have a firearm on his Rural property for vermin control and for animals that cannot be helped. He also gave evidence that he did not understand why the Special Condition had been imposed on him as he had no criminal history, had done nothing wrong and that his younger son had no contact with his weapons. Statements from both of the Applicant's sons indicated that they did not have access to the Applicant's firearms.
6. The Applicant submitted that police had previously returned hunting bows to his younger son and had not seized his older son's hunting bows. He also referred to his younger son holding a Paintball Marker Permit that had not been revoked. The exact circumstances of these matters are not before the Tribunal, and in any event, I consider them to be of no relevance, given that the Tribunal is required to make the correct and preferable decision solely in relation to the Respondent's decision to affirm the revocation of the Applicant's licence.
7. The Applicant is aged 74, has no criminal history and apart from the breach of the Special Condition following the 2023 Incident, no other contraventions of the Act or Regulation have been established. I accept Ms Tipene's submission that the Applicant's current situation is a difficult one and has largely come about because of the conduct of his sons rather than as a result of his own conduct. It remains the case however, that as of the date of the hearing the Applicant has both of his sons residing at his Rural property and both have extensive criminal histories.
8. In the case of the Applicant's older son, other than the conviction for assault arising from the 2022 Incident, his most recent offences are largely drink driving and drug offences. He does however have a number of matters in his past relating to motor vehicle theft and attempted motor vehicle theft as well as a conviction for possession of housebreaking implements. He was sentenced to a minimum term of 12 months imprisonment for an offence of break enter and steal, albeit in 1996, some 28 years ago.
9. As set out above, the Applicant's younger son has a number of convictions for violent offences. He was convicted on 5 September 2023 of "use offence weapon w/i to commit indictable offence"; "common assault (DV)" and "destroy or damage property (DV)". The Applicant's criminal history indicates that these offences took place on 30 April 2020, and he was sentenced to intensive corrections orders that remain in place until August 2024, and which include mental health treatment as well as abstinence from alcohol and drugs. As of the date of the hearing, the Applicant's younger son remained on bail in relation to the further offences alleged to have been committed on 15 May 2022 that have previously referred to, and that were awaiting finalisation.
10. The Applicant was present at the 2012 Incident, the 2016 Incident and the 2021 Incident, all of which occurred at a property owned by the Applicant and resulted in police being called. Each of these incidents involved a high level of threatening and aggressive conduct by the Applicant's younger son and the 2021 Incident involved the use of a knife. In addition to those matters, the Applicant's younger son has been both convicted and/or charged with further offences that also involve the use of a weapon and aggressive and threatening conduct, a number of which have yet to be finalised and which require him to reside at the Rural property.
11. Section 11(4)(a) of the Act requires that a licence must not be issued if the Commissioner, and by extension the Tribunal, has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances. Having regard only to the Applicant's age and health issues, I would not be satisfied that such reasonable cause exists. Similarly, the 2022 Incident and the criminal history relating to Applicant's older son, would of themselves, not have been sufficient for me to be so satisfied. It appears that the Respondent reached the same conclusion following the 2022 Incident as the Applicant's firearms were later returned to him by police.
12. However, when the above matters are aggregated with the ongoing history of aggressive and threatening conduct displayed by the Applicant's younger son as set out above, and the Applicant's contravention of the Special Condition, I have reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over his firearms due to his domestic circumstances.

Public interest

1. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (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, New South Wales Police Service v Toleafoa [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.
2. 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] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2)(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.
3. 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]. In the present context, and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety.
4. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward), 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that 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].
6. 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]. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Montgomery SM 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".

Consideration

1. Having regard to my finding above that the Applicant breached the Special Condition, it follows that he has contravened a condition on his licence under the Act. I have also made a finding that I have reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances.
2. Whilst I accept that the Applicant has a genuine reason to possess and use a firearm on his Rural property, the Tribunal held in Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 at [44]: 44 The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety…
3. Accordingly, I find that the consideration of the Applicant's interests in this matter are outweighed by the public interest.
4. Taking into account all of the circumstances of this matter and the findings that I have made, I am not satisfied that there is virtually no risk if the Applicant was to hold a firearms licence and possess firearms at this time, particularly in circumstances where his younger son is residing at the Rural property. Whilst I accept that the Applicant is aggrieved by the situation that he has found himself in due to the issues surrounding his two sons, I note that the Respondent has previously attempted to mitigate the risk posed by the Applicant's domestic circumstances through the use of the Special Condition and that the Applicant did not comply with that condition. Having regard to the principles and objects of the Act, I am satisfied that the issue of the licence to the Applicant at this time would be contrary to the public interest.
5. Accordingly, the correct and preferable decision is to affirm the Respondent's decision to revoke the Applicant's licence. The Applicant is not precluded from applying for a licence in the future.

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: 30 April 2024