Latella v Commissioner of Police, NSW Police Force

Issues

1. The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether or not it is contrary to the public interest for the Applicant to hold a firearms licence.

Applicable legislation

1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Firearms Act. This application is made under section 75 of the Firearms Act and the ADR Act.
2. The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence.
3. Section 58(1)(b) of the ADR Act requires the Respondent to lodge a copy of every document relevant to the determination with the Tribunal. Under section 59 of the ADR Act the Tribunal may make an order that the administrator is not required to lodge a copy of a document under section 58. The Tribunal is to grant the Applicant access to the documents lodged unless there is an order restricting disclosures made under section 64 of the Civil and Administrative Tribunal Act 2013. In this matter an order was made under section 59 of the ADR Act in relation to some material filed by the Respondent on a confidential basis. An order restricting disclosure was also made under section 64 of the NCAT Act. In the circumstances, it is not necessary that I consider that confidential material because the matter can be determined on the open material.
4. The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
5. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. Accordingly, there is no burden or onus of proof on either party.
6. The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
7. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review.
8. The Tribunal is to make its own decision and there is no presumption that the Respondent's decision is correct. However, in determining the review, the Tribunal, must exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
9. The Act sets up a scheme to license people to possess and use firearms. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. The underlying principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Keane v Commissioner of Police, NSW Police [2008] NSWADT 68 Judicial Member Handley observed at paragraph [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. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ('Ward'), at paragraph 27 to paragraph 28, Deputy President Hennessy said that in terms of public safety: "27. ... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28. The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.""
10. Section 11 of the Act provides for the issuing of licences. Subsection 11(3) provides: (3) A licence must not be issued unless: (a) 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, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. ...

The Public Interest

1. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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 'public interest' allows a consideration of issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
3. "Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

The material before the Tribunal

1. The Commissioner relies on both open and confidential evidence. This includes a number of records from the Respondent's Computerised Operational Policing System ("COPS") database. The Commissioner relies on a significant amount of material related to the 2 May 2018 incident. The transcript of the Local Court proceedings related to the 2 May 2018 incident is also in evidence as is the revocation decision.
2. The Applicant relies on his own evidence. He also made detailed submissions in support of his case. In addition, he relies on a petition which on its face appears to be related to his application for reinstatement of his dealer's licence.

The Applicant's Case

1. The Applicant submits that he has an obligation to control vermin and feral animals on his property. He contends that it is not always feasible to rely on others to perform the tasks that he could carry out himself if he had a firearms licence.
2. The Applicant's case was largely focused on the events of the 2 May 2018 incident and what appears to be a grievance in relation to the way the matter was handled at the time. Both his written submissions and his oral submissions set out a litany of errors which he alleges infected the COPS records and the statements provided in relation to the Local Court proceedings.
3. There appears to be some merit in some of his allegations for example discrepancies between the evidence of when police concluded their search of the Skins and Things premises.
4. I note his allegations that when the police officers left those premises, it was not properly secured, records were left behind and a firearm was left unattended. However, this is not the forum to attempt to relitigate those issues. It is not in dispute that the Applicant entered a guilty plea in relation to the charges. I have set out above the outcome of the Local Court proceedings. This is also not in dispute.
5. However, many of the Applicant's allegations are unsubstantiated. In his written submissions he wrote: If any bodies character, morals, principles, and integrity are to be questioned, it is that of the firearm registry and police involved, because of the furphys told, there credibility has no standing … I believe these charges were placed upon me by an incompetent licensing Sargent … to justify the cost of the operation that occurred on the 3rd of May. … There is no ongoing investigation, or people of interest and or criminal activities going on. I have always tried to help police in their investigations, you only need to call Coonabarabran police station to confirm. This is a grave overreach and abuse of power by the police. I am sorry that I have to make this statement, but the truth of the matter is that it does not pay to tell the truth or make statements to police voluntarily anymore, if I would have lied that day 2 May 2018 none of this would have transpired as there was no evidence what's so ever to prove I had made the transactional error, but because I was truthful and honest which is how I was bought up to be, the most extreme heaviest punishment was handed out to me which is above and beyond the act itself.
6. In relation to the issues that are the subject of these proceedings, the Applicant's material largely concerns his unblemished history in dealing with firearms prior to the 2 May 2018 incident, and the impact on him personally and financially as a result of the revocation of his licences.
7. He gave evidence in regard to his long-standing position in the local community and the high regard in which he is held. These matters are not in dispute.
8. It is common ground that the Applicant has a prior conviction from 1988 which related to cultivating a prohibited plant. The Applicant submitted that he has held all of his firearms licence since that conviction and therefore little, if any, weight should be given to that issue.
9. It is also common ground that the Applicant has a long history of traffic offences. His evidence is that he regrets that record. He explained the offences in terms of the long distances that he drives each year and his lack of attention to the speed zones.
10. In summary, he contends that given his otherwise unblemished record in dealing with firearms, his good standing in the community and the time that has passed since the 2 May 2018 incident, there are no public interest issues that would prevent the grant of the licence that he is seeking.

The Respondent's Case

1. The Respondent contends that there are number of considerations that are relevant to the question of whether the issue of a firearms licence to the Applicant would be contrary to the public interest. In particular, the Respondent points to the Applicant's:

• illegal sale of ammunition;
• failure to maintain proper records as a firearms dealer;
• safe storage breaches;
• poor traffic record; and
• prior offences.

1. Senior Member Ransome's reasons for the revocation decision have discussed most of these issues.
2. The Respondent acknowledges that the application before the Tribunal relates to a personal firearms licence, rather than a firearms dealer licence. However, it is submitted that the Applicant's conduct in his prior occupation as a firearms dealer remains highly relevant to the public interest and public safety considerations and the Applicant's likelihood of future disregard and non-compliance with firearms laws.
3. It is not in dispute that the Applicant received conditional release orders with a nine-month bond for several of the charges arising out of the 2 May 2018 incident. Nor is it in dispute that some charges were dismissed pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. However, the Respondent submits that it is the Applicant's conduct that is of relevance to the Tribunal, not the outcome of the Court proceedings.
4. The Respondent submits that the breaches of the firearms legislation need to be viewed as serious and consequential because the Applicant held a position of significant trust within the community. The public has a right to expect those entrusted with a licence to sell firearms and ammunition will adhere to all rules and regulations in the interest of public safety, and in compliance with the conditions of the licence they hold.
5. The Respondent submits that the Applicant failed to meet these expectations and lawful requirements.
6. The Respondent contends that either the Applicant was an extremely poor record keeper or that it was a deliberate act on his part to continually fail to maintain the necessary information that a firearms dealer is required to keep.
7. Accordingly, it is submitted that the Tribunal would be extremely concerned by the Applicant's serious failures to adhere to his obligations as a firearms dealer. The Respondent further submits that, given his previous history of serious breaches and failure to comply with his obligations, the Tribunal would find it highly unlikely that the Applicant would adhere to the rules and regulations of firearms ownership, should he be granted a personal firearms licence.
8. Further, the Respondent submits that in these circumstances there is a real and appreciable risk to public safety, and therefore it cannot be in the public interest for the Applicant to be granted a firearms licence.

Traffic record

1. The Applicant's traffic record is in evidence. In summary, since 1982 the Applicant's infringements include:

• speeding on 16 occasions;
• failing to adhere to stop signs;
• failing to wear a seatbelt on two occasions;
• disobeying traffic signals on four occasions;
• driving without a licence;
• failing to display P Plates; and
• driving on the wrong side of the road.

1. The Respondent also noted that the Applicant has twice accumulated so many demerit points that his licence was suspended. Further, on one occasion he entered into a good behaviour licence for 12 months, instead of having the suspension enforced.
2. The Respondent submits that this pattern of behaviour gives rise to serious concerns. For over forty years the Applicant has maintained a course of conduct which shows a disregard for public safety, including that of his own. His behaviour is also indicative of a long disregard for the law. It also indicates that he has failed to reflect on his driving habits and to improve his behaviour. Furthermore, it appears that his behaviour on the road is not deterred by fines and other punishment provided for by the regulatory regime.
3. The Respondent relies on views that I expressed in O'Brien v Commissioner of Police [2022] NSWCATAD 259 ("O'Brien"). In that case, the applicant had demonstrated a long, sustained history of traffic infringements. At paragraph [58] I stated: The Commissioner is concerned that this history demonstrates a disregard for public safety and his own safety as well as a disregard for a regulatory scheme aimed at ensuring public safety. I share that concern.
4. I also commented at paragraph [61]: The immediate difficulty that this history of traffic infringements poses is that it has continued over a very long period. The offences commenced while he was still on his Learners Permit in 1994 and the most recent infringements were in May 2021.
5. The Respondent noted that, in O'Brien, I ultimately refused the firearms licence application on the basis of the applicant's poor traffic record.
6. In relation to the Applicant's 1988 conviction, the Respondent submits that the Applicant's entire history is relevant, and it should be considered notwithstanding that age of the conviction.
7. With respect to the Applicant's claims to need a firearms licence to control pests on his property, the Respondent submits that there are numerous professional shooters who could assist as well as amateur shooters who could be given permission to shoot on his property. Further, the Respondent submits that the Applicant's private interest in recreational hunting or vermin control must be subordinate to the public interest.
8. In summary, the Respondent submits that the evidence before the Tribunal clearly indicates that the Applicant has a disregard for the firearms licencing scheme and regulations, which are focused on ensuring public safety. Accordingly, the Tribunal would be satisfied that it is not in the public interest for him to hold a firearms licence.

Discussion

1. For the purposes of these proceedings, I accept that the Applicant is well regarded by those in the town who know him and have dealt with him in his roles as a firearms dealer, store holder and café operator. I also accept that he has suffered significant financial losses since his licences were revoked.
2. However, this is a matter in which there is no doubt about the charges that were brought in relation to the 2 May 2018 incident, the Applicant's guilty pleas or the outcome of the Court proceedings.
3. The transcript of the Local Court proceedings related to the 2 May 2018 incident is in evidence. Notwithstanding the outcome, it is apparent that Magistrate Macpherson, who dealt with the matter, considered that the Applicant's conduct was serious. His Honour stated: I have got to be careful I mean in handing out no convictions because the prosecution are quite entitled and I think the other thing is a message has got to go out because it's not just Mr Latella that if you are going to operate around firearms that there's a fairly heavy onus on you to keep that safe. … I am satisfied having regard to all the circumstances that I can proceed by way of no conviction but it would have to be by way of a bond, this wasn't just one breach, it was a number of breaches involving not just the display but also the register so I deal with the matter on this basis
4. My main area of concern in this matter is that the Applicant does not appear to grasp the gravity of his conduct. His focus appears to be on the fact that no conviction was recorded, rather than the underlying conduct. Rather than adopt an attitude of self-reflection he appears to have taken the view that his conduct was so minor that either no action was warranted, or a mere fine was sufficient.
5. In the revocation decision, Senior Member Ransome stated at paragraph [73]: Mr Latella has contravened provisions of the Firearms Act. While these breaches were related to his dealer licence, they indicate a disregard for the strict requirements of the law. He has continued to downplay his actions and does not seem to recognise the serious nature of his non-compliance with the Firearms Act. I cannot be satisfied that in the future Mr Latella will exercise appropriate control of his firearms. ... In those circumstances, it is not in the public interest for Mr Latella to continue to hold a firearms licence at the present time.
6. It does not appear that the Applicant has moved forward from that position in the time that has passed since the revocation decision was made in September 2020.
7. I have formed the same view that Senior Member Ransome formed. At this time, I cannot be satisfied that the Applicant will exercise appropriate control of his firearms in the future unless some changes take place. At the minimum, I suggest that he would need to undertake some form of training to focus his mind on the need for compliance with the firearms legislation before I would be satisfied that he should be permitted to hold a firearms licence.
8. An applicant for a licence needs to show that they have the requisite knowledge of the duties and responsibilities of the holder of the particular licence. At this stage, I cannot be satisfied that the Applicant meets this requirement.
9. Until such time as he is able to do this, there remains a risk to the public and therefore it is not in the public interest for him to hold a firearms licence. It follows that the Respondent's decision was the correct and preferable one. As such, the decision to refuse to issue the Applicant a category AB firearms licence should be affirmed.

Order 1. The decision under review is affirmed.

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: 06 May 2024