Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Director of Public Prosecutions v Smith (1991) 1 VR 63Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Fielden v Commissioner of police, New South Wales Police Service [2000] NSWADT 156Hardy v Commissioner of Police, New South Wales Police [2006] NSWADT 167Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Kioa v West (1985) HCA 81, (1985) 159 CLR 550Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10O'Sullivan v Farrer (1989) 168 CLR 210
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Thomas v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 204
Judgment (12 paragraphs)
[1]
tion]" are not to be published or released to the applicant.
[2]
reasons for decision
This administrative review application relating to revocation of a firearms licence was heard on 15 April 2020. Pursuant to the applicable social distancing requirements necessitated by the COVID-19 pandemic, the hearing was conducted entirely by telephone.
There had previously been an ex parte interlocutory motion by the respondent Commissioner seeking confidentiality for certain evidentiary material and exemption from the obligation to file and serve certain documents as required by s 58 of the Administrative Decisions Review Act 1997 (ADR Act). That application led to certain orders to that effect being made: Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9.
On 14 October 2019, the applicant Mr Terrence Manning had applied to this tribunal for review of a decision by a delegate of the respondent made on 12 September 2019 affirming a decision made by the respondent to revoke the applicant's firearms licence in accordance with s 24(2)(d) of the Firearms Act 1996 and cl 20 of the Firearms Regulation 2017.
The applicant had been issued with a category AB firearms licence on 11 February 2016, to expire on 11 February 2021, for the purposes of recreational hunting/vermin control and clay target shooting. On 26 October 2006, he was issued with a firearms licence for the reason of primary production.
On 25 September 2018 he came to police notice following a domestic incident report involving himself and his wife Mrs Kate Manning. Following some interaction with police, he was arrested and his registered firearms were impounded. In the course of so doing, police located some shotgun shells being unsafely stored and what appeared to be a handgun in the glove compartment of a vehicle parked outside his residence. The applicant said it had been built by his grandfather in 1945 and was not functional. It appeared to be old and no make, model or serial number could be located on it.
On 26 September 2018 he was served with an interim apprehended violence order (IAVO) for the protection of his wife and three children. The order was varied on two occasions to remove his children as the persons in need of protection. The order was extended on 6 November 2018. On 7 June 2019, he appeared before Hay Local Court and was convicted of the offence of not keeping a firearm safely (not prohibited firearm/pistol) and sentenced to a 12-month community correction order. That order was varied by the District Court on 6 August 2019. He was found guilty of the offence, but the charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.
[3]
Applicable legislation
Section 24 of the Firearms Act 1996 provides for the revocation of firearms licences on various grounds:
24 Revocation of licence
(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)
(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.
(1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if -
(a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or
(b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act.
(2) A licence may be revoked -
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee -
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
(2A) If the Commissioner revokes a licence because the licence holder would be refused a licence on the grounds referred to in section 11 (5A), the Commissioner is not, under this or any other Act or law, required to give any reasons for revoking the licence on those grounds.
(3) The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it.
(4) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.
(5) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.
[4]
The evidence
The applicant adduced no evidence but relied on written and oral submissions. The respondent led no oral evidence but relied on documentary material, including the s 58 documents (exhibit R1) and on written and oral submissions.
[5]
Applicant's submissions
The applicant adopted his written submissions filed on 20 February 2020 in which he explained inter alia that he had at all relevant times been a primary producer raising cattle and crops in an extensive broad acre farming regime near Kyalite in the far south-west of New South Wales. Kyalite is a rural remote area.
The applicant was issued with category A and B licences, for the reasons of recreational hunting/vermin control and clay target shooting, on 25 September 2000. On 26 October 2006, a licence based on primary production was issued. There is no dispute that the applicant's reasons are genuine, reasonable and ongoing.
The respondent subsequently inspected, and confirmed the adequacy and compliance of, the applicant's firearms storage on 28 January 2004 and 23 March 2011. On each occasion it was noted that safe storage conditions were met.
Significantly, the same approved storage was the subject of the charge to which the applicant ultimately pleaded guilty on the basis of the facts tendered before the Hay Local Court (exhibit R1, tab 8a). From those facts it was clear that the otherwise approved storage was deemed unsafe only because of its (presumably) empty weight and consequent lack of attachment to the wall or floor. The applicant submitted that the tribunal could take judicial notice of the desirability of a locked, approved storage (although not bolted to the wall or floor) in a residence on a rural remote property, as against being attached in an outbuilding as previously, given that the weight and attachment recommendations are designed to prevent theft. The respondent carried out no further inspection between 2011 and 2018.
After the police attendance at the applicant's premises on 25 September 2018, the respondent commenced a number of criminal and apprehended violence order (AVO) proceedings, which with one exception were withdrawn on the authority of the respondent's delegates.
No evidence was adduced or adjudicated upon, beyond the agreed facts as tendered (exhibit R1, tab 8a). None of the matters alleged in the Computerised Operational Policing System (COPS) records was ever pressed, tendered or otherwise relied upon by the respondent. The ultimate determination of Marien DCJ was that the proceedings as brought by the respondent could properly be dealt with pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act and the information was dismissed without conviction. No recognizance was required.
[6]
Consideration
This tribunal has jurisdiction to entertain this application by reason of s 75(1)(c) of the Firearms Act, which creates a power to review a decision by the Commissioner revoking a licence or permit.
[7]
Contravention of a provision of the Act
The first sub-issue is whether, as the respondent submits, the applicant's license should be revoked because he contravened a provision of the Act within the meaning of s 24(2)(b)(ii). That sub-paragraph applies "whether or not the licensee has been convicted of an offence for the contravention". The provisions in question are ss 39 and 40, which relate to safe storage, and ss 50 and 51A(2), which concern the procedure for the acquisition of firearms.
The applicant has not been convicted under any of those provisions, though he was originally charged under each of them. On 7 June 2019, however, he was found guilty of the offence of not keeping a firearm safely and sentenced to 12-month community correction order. Following a severity appeal to the District Court, his original sentence was dismissed under s 10 without the requirement of a good behaviour bond, though the finding of guilt was affirmed.
The respondent nevertheless maintains, as he is entitled to do, that the applicant contravened a number of other provisions of the Act, including registration and safe storage provisions. The police search also uncovered an unlicensed home-made handgun in the glovebox of the applicant's car, which could potentially have constituted a serious offence. The applicant said his grandfather had made it in 1945 and he had recently found it in a back shed. The matter was not pursued, however, as the gun was never tested to ascertain whether it was capable, or ever had been capable, of firing. No photograph of it was in evidence
The applicant does not dispute the record of the criminal proceedings but submits that it should be given little weight because the applicant was not afforded procedural fairness in the initial stages (revocation and internal review) of the application, in that he was not given access to certain COPS event reports on which the decision-makers relied (he has since received copies of the reports, however).
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role 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: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
[8]
Fit and proper person
The second ground on which the application is opposed is that the applicant is not a fit and proper person to hold a licence. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion [my emphasis].
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
[9]
The public interest
The third basis of the respondent's case in support of revocation is the contention that it is not in the public interest for the applicant to hold a firearms licence. Section 24(2)(d) of the Firearms Act provides that a licence may be revoked for any reason prescribed by the Regulation. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold it. The expression "public interest" is not defined in the Act, but it is clearly related to the primary objective of the legislation, which is to safeguard public safety.
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, taking a balanced view of risk.
[10]
Orders
1. Decision under review 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 exhibits CR 2 and CR 3 and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[11]
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
[12]
Amendments
22 April 2020 - Paragraph [50] restricted. Not for publication.
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: 22 April 2020
The issue in this application, the respondent submitted, was whether the applicant's firearms licence should be revoked because:
the applicant had infringed a provision of the Firearms Act: s 24(2)(b)(ii);
the applicant was no longer a fit and proper person to hold a firearms licence: s 24(2)(c); or
it was not in the public interest for the applicant to continue to hold a licence: s 24(2)(d) and cl 20 of the Firearms Regulation 2017.
The applicant raised a further issue: whether the applicant's license should not be revoked because he had been denied procedural fairness at the early stages of the revocation process.
Both the respondent and the tribunal are bound by the principles of procedural fairness, unless that requirement is specifically excluded by statute. No such exclusion exists. Those rules require that if the tribunal or other decision-maker is to draw an adverse inference from a particular document or asserted fact, it should be squarely and completely put before the party affected to enable the party to deal with it by way of argument or evidence: Kioa v West [1985] HCA 81, (1985) 159 CLR 550.
In that case Mason J acknowledged that a fundamental rule requires that a party "is entitled to know the case sought to be made against him and to be given an opportunity of replying to it" and that "if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application, there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter".
In this case the decision-makers had apparently derived adverse information concerning the applicant from certain COPS event reports that were not produced, nor their contents disclosed, to the applicant or his legal representative before the initial determination or the internal review. No opportunity to read or answer the adverse material was afforded. That approach, including the reference to and apparent reliance upon such an unknown and untested material, did not accord with the requirements of natural justice. Consequently the decision by the respondent not to adduce evidence in the criminal proceedings beyond the agreed facts as tendered, reduced the ambit of material available to the decision-maker to those agreed facts.
Moreover, the subsequent reliance of the decision-makers on material not previously disclosed to the applicant or previously constituted tribunal deprived the applicant of any proper procedural fairness. His genuine reasons remained unchanged and his need for a firearms licence, particularly in his role as a primary producer, is in the public interest, given the environmental, economic and humane necessities of modern farming.
The applicant submitted that he is a fit and proper person to hold a firearms licence: without previous stain or conviction, with a genuine need and that need also meeting the public interest.
In oral submissions by telephone, Mr Davidge reiterated those points, adding that the respondent had had the opportunity and the responsibility of pressing the matters relied on, but had abandoned all the charges except the s 39 count. Nevertheless, he still sought to rely on them. If the respondent had been confident about the matters alleged, he would have pressed the charges. The original determination by the respondent had relied on material that had not been ventilated and which the applicant had not had the opportunity of challenging.
The applicant disputed the conclusions reached, Mr Davidge said, except in relation to the s 39 breach, which by itself would not be enough. The applicant was not calling his own evidence, but was relying on the submissions filed on 20 February 2020. The applicant did not seek to derogate from the public interest considerations involved, but the respondent's evaluation should have been limited to the s 39 breach.
Proceedings in this tribunal are thus in the nature of an administrative hearing de novo, not of judicial review or appeal in the usual sense. Any procedural defects at earlier stages are therefore largely immaterial, provided that a party is afforded procedural fairness before the tribunal itself.
It is not disputed that this application has so far been dealt with in accordance with the principles of procedural fairness or natural justice. The facts on which the respondent relies have been clearly detailed and the COPS reports are admissible and relevant evidence, which has not been contradicted by any evidence from the applicant. The well-known principles laid down in Kioa v West and similar cases therefore do not assist the applicant in this case. The weight of the respondent's evidence is a matter to be considered separately, however.
Clear guidance as to how the Firearms 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)(c) states that a licence must not be issued unless the Commissioner is satisfied that the Act's storage and safety requirements are capable of being met by the applicant. Section 11(4)(a) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living or domestic circumstances.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]; Hardy v Commissioner of Police, New South Wales Police [2006] NSWADT 167 [15] - [17].
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].
The respondent's chief concern in this context is the finding of guilt for failure to store a firearm safely (charge No. H134602702). At Hay Local Court on 7 June 2019, the applicant was found guilty and sentenced to a community correction order of 12 months commencing on 7 June 2019. The applicant appealed against severity and in Griffith District Court on 6 August 2019 the charge was dismissed under s 10 but the finding of guilt was maintained. No good behaviour bond was required.
The police fact sheet for the charge relates that "The firearms safe belonging to the accused is located in an office at the end of the house. The safe is a black cabinet that was not secured to the floor and wall, it was easily moved around by Police. The accused has not met safe storage requirements for firearms. Police seized a green bag that was sitting on the floor next to the gun cabinet that contained 36 shotgun shells" (exhibit R1, p 27).
The black cabinet referred to appears in the body camera footage taken by Sgt Tucker (exhibit R5). The applicant points out that his safe storage was passed by police on two earlier occasions, but the respondent disputes whether it was the same storage cabinet, as on those occasions it was located in a back shed. At all events, it is not disputed that the black cabinet weighed less than 150 kg when empty and therefore, pursuant to s 40(1)(b), should have been fixed to the floor or a wall, which was not done. Consequently an offence under s 39 was committed.
It may be noted, however, that from the video footage the black cabinet appears to be a substantial, purpose-built item rather than a lightly-constructed container similar to a filing cabinet. It is secured by a built-in lock, not by padlocks. Although police were able to move it around easily (presumably when it was empty), there were three officers in attendance who were able to join in doing so. Located in the main residence on a large rural property in a remote area, its unauthorized removal would have presented something of a challenge to intending thieves. In my view the offence lay at the lower end of the scale of seriousness. The learned District Court judge seems to have been of the same opinion, as his Honour did not require the applicant to enter into a good behaviour bond.
In addition, however, there was the matter of the 36 shotgun shells that were not secured in the manner required and the applicant's failure promptly to follow the prescribed procedures when registering a firearm he had purchased. Those matters suggest a certain nonchalance towards the statutory requirements. Even so, on all the evidence, in the circumstances the applicant's contraventions of the Act do not in themselves amount to a strong case for licence revocation. The respondent relies on other grounds as well, however.
In submitting that the applicant is not fit and proper to hold a firearms licence, the respondent relies on a number of circumstances. Mr Manning came to the attention of police as a result of a domestic violence incident and remained subject to an IAVO until the common assault charges referred to above were withdrawn. He was found guilty of a safe storage offence and contravened a number of provisions of the Act. He failed to follow police directions, thereby evincing an inability or unwillingness to act responsibly in the context of firearms possession.
As the tribunal noted in Thomas v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 202, the fact that the applicant's relationships result in provisional or interim apprehended violence orders for the protection of his partners was a relevant factor in finding that person is not fit and proper. A significant event pointing to such a conclusion occurred on 25 September 2018 at the applicant's residence.
In the course of an argument indication near the back door, the applicant had seized his wife and thrown her against the refrigerator, causing her to fall to the floor. After some other confrontational acts, the applicant had thrown a dining room chair at Mrs Manning, striking her on the hip. She sheltered in the bedroom with one of their children before going outside the house, where she saw the applicant standing 20 m away near the side of the house, holding a firearm (though he did not point it at her). In fear of her safety, she ran from the house down the driveway to the road, where she was met by Sgt Narelle Tucker, S/Cst Gemma Hamoun and, apparently, S/Cst Morgan Hadjialexiou. The affidavit by Sgt Tucker provides more detail.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The applicant was made subject to IAVOs for the purpose of protecting his wife and children, which were amended (by deletion of the reference to the children) and ultimately withdrawn on 7 June 2019 when the common assault charges were withdrawn. Although the two counts of common assault (domestic violence) arising from the incident were withdrawn as a result of Mrs Manning's not attending court, the episode is a serious matter that must be taken into account when assessing the applicant's fitness and propriety. Victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions, and it is possible that she did not attend court for that reason. It is also possible that Mrs Manning may have opted out of the prosecutions in the hope of salvaging the marriage, as they have three children. There is, however, no direct evidence from either spouse on that point or on any other matter.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The incident on 25 September 2018, coupled with the laying of charges and the issuance of IAVOs against the applicant, as well as the safe storage contravention and the threats of self-harm, makes a strong case for concluding that the applicant is not a fit and proper person to hold a firearms licence.
That is especially so as the applicant has given no evidence at all, or any explanation of his conduct or any evidence that he has taken steps to ensure that such episodes do not recur. He has supplied no character references. His answer to the respondent's case is that the tribunal should disregard all evidence other than the admitted facts because of the alleged denial of procedural fairness in the early stages, but for the reasons given above that position is not tenable.
Although the applicant has not had the opportunity of testing the confidential evidence, its relevance and weight are considerable. On the basis of the open and confidential evidence, I find that the applicant is not a fit and proper person to hold a firearms licence.
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].
Taking a balanced view of risk to the public, there are real grounds for concern in this matter. The most significant factor in this case is the nature of the domestic violence incident involving the applicant and Mrs Manning. Any involvement of a firearm in a domestic argument, whether it is pointed or brandished or not, is a matter of serious concern (Fielden v Commissioner of Police, New South Wales Police Service [2000] NSWADT 156, [56]), and in this case it caused the victim serious alarm. Further, on that occasion, the applicant refused to comply with legitimate police directions (although not in a violent or physically unruly manner). Then there are the applicant's contraventions of several provisions of the Act, and his being found guilty of infringing safe storage provisions.
As against that, 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. That factor does not carry significant weight in this instance, however, as the applicant's father, who lives on the same property, is licensed and keeps firearms. There is no evidence that the applicant's farming or grazing activities are being, or will be, adversely affected by revocation of the applicant's license.
I therefore conclude on all the evidence that it is not in the public interest for the applicant to hold a firearms licence, and I so find.
The reasons given for making confidentiality orders in the interlocutory decision (Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 9) still apply and similar orders should now be made.