Margules v Commissioner of Police

Evidence

1. The Applicant provided two affidavits, dated 28 January and 24 February 2022, upon which he was cross examined.
2. The Applicant also provided a series of references: Barry Carne, Amrish Sharma, Geoffrey Welch, Trevor McLeod, Darren Brown, Harold Bradley, Sandra Mavin, Nicole Reid, and Lauren Margules, the Applicant's wife. All were cross examined, except Messrs Carne, Sharma, Welch and Mahajan who were not required, and Ms Reid, who was not available.
3. In addition to the documents filed under s 58 of the Administrative Decisions Review Act 1997 (ADR Act) the Respondent provided a statement by Constable Tyler Bryce dated 30 March 2021. Constable Bryce, who was cross examined, provided a copy of his BWV which I viewed prior to the hearing and reviewed afterwards. The Respondent also provided a copy of material in relation to pest management.

Tribunal's approach

1. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

Consideration

1. Before me the Respondent submitted that the Applicant is not a fit and proper person to hold a firearms licence nor is it in the public interest that he do so. It was contended on the Applicant's behalf that the Respondent could not now raise that the Applicant was considered not to be a fit and proper person, when it had in the original decision and in the internal review only relied on the public interest test. However, in making the correct and preferable decision the Tribunal is not limited as the Applicant submits: see discussion in Johnston v Commissioner of Police [2021] NSWCATAD 231 and Selmes v Commissioner of Police, NSW Police Force [2021] NSWCATAD 360.

Applicant's history relied on by the Respondent

1. The Respondent relied on several events between 2003 and 2013 when the Applicant came to the attention of Police, in particular, in relation to an incident in January 2021.
2. In December 2003, when the Applicant was aged 17, Police were called to Bungendore township after reports of persons causing a disturbance in the main street area. Upon arrival, Police observed tables and plastic chairs placed on the main street. The Applicant and 3 other young persons were found by Police, hiding in long grass. They were directed by Police back to the area to return all the furniture to its rightful place.
3. In January 2004 a group of 8 young persons, including the Applicant, were spoken to in Bungendore following a complaint that they were behaving in a manner likely to offend onlookers and were impeding the free flow of traffic. The Applicant, and the others, were issued a move on direction by Police.
4. In February 2004 Police were patrolling the Bungendore township when they observed a group of young persons, including the Applicant, run from Police. The Applicant told Police that he had run away because he was scared and he had on a previous occasion been told not to loiter. The Applicant was issued a move on direction by Police.
5. In June 2004 the Applicant was questioned in relation to a vehicle that was reported to Police as possibly stolen. The Applicant told Police that he had purchased the vehicle from an unknown male in Queanbeyan. He later admitted that he had lied and in fact had acquired it from an unknown male in the ACT. He told Police that the reason he lied was that he was worried about being caught for driving an unregistered vehicle. He was issued with a Penalty Infringement Notice.
6. Also in June 2004, Police were called to a hotel in relation to a brawl. On arrival, Police issued a group of young persons, including the Applicant, with a move on direction.
7. In February 2005 the Applicant was reported to Police for driving erratically; he was observed to have been swerving and also 'fish tailing' in dirt verges of the roadway. He was issued a caution.
8. In February 2005, Australian Federal Police charged the Applicant with Damage Property under s 403 of the Criminal Code 2002 (ACT) for damage to property. The Applicant was convicted in the ACT Magistrates Court and made subject to a Recognizance Release Order for 3 years and required to pay compensation. In his affidavit he expressed regret over the incident.
9. In November 2005 a group of 5-10 young men, including the Applicant, was reported to Police as being extremely loud, abusive, swearing and destructive. Witnesses reported that the group pulled koppers logs and bricks from a garden bed and smashed them all over the street. Police observed that a brick was used to smash holes in signs on the street and a phone box. It was reported that the group used a considerable amount of force to knock down a speed limit sign which was concreted into the ground. The group was witnessed by members of the public allegedly assaulting an individual. It was reported the individual attempted to defend himself continually saying "I don't want to fight, come on stop". It was reported the group continued to hit, kick and punch the victim causing his clothing to be ripped from him and his lip to be cut. It is does not appear that charges were laid.
10. In February 2006 a group of young persons, including the Applicant, were apparently intoxicated and were making noise that was considered offensive. The group was also obstructing the free flow of traffic. Police issued them with a move on direction.
11. In October 2006 Police were called after a group of young persons, including the Applicant, was reported to have assaulted a security guard at a hotel in Bungendore. It was reported that the group violently attacked the security guard causing him to fall to the ground, at which time the group began to kick him, such that he required treatment at the scene by ambulance. It was reported the group was extremely intoxicated and aggressive towards Police and hotel staff. Staff and patrons of the hotel reported being in fear for their safety and numerous calls to "000" were made from the location in relation to the group's behaviour. As a result, the Applicant and other members of the group were charged with the offence of Affray-Tl. The charge was dismissed at Queanbeyan Local Court, allegedly because the security guard did not identify the Applicant as the perpetrator. In order to verify that claim, the Applicant endeavoured to obtain the transcript but now, after so long, it is no longer available.
12. I observe that the above conduct occurred when the Applicant was a teenager or a young adult, and is now, in some cases, some 18 years ago. The Applicant conceded in his evidence that he was immature. As was pointed out on the Applicant's behalf, all these matters were known to Police when the Applicant was first issued a firearms licence in 2016. I consider that his conduct, now so long ago, should be afforded little weight.

Conduct in November 2010

1. The Applicant did not come to Police attention again in the 4 years to 2010. Police were patrolling in front of a hotel in Bungendore, when they observed a group of young persons, including the Applicant, shouting abuse at them. Police reported that the Applicant appeared to be intoxicated and he began to argue with Police. The group was directed to cease the language and not come within 100 m of the hotel. The group failed to comply and was warned again and cautioned that failure to comply would result in arrest. The group was heard to be swearing as they walked away. No charges were laid.

Conduct in July 2013

1. The Applicant wrote in his affidavit that he had been at a joint bucks and hens party on the Gold Coast. While at a club, his phone was stolen, allegedly by a group of males who were also in the club. The Applicant said he sought assistance from the security guards at the club, but they were unhelpful. He located a Police officer outside and informed her of the situation but she declined to go into the club and conduct a search. The Applicant said he started panicking and recalled saying words to her to the effect of "you're fucking useless at your job".
2. Nicole Reid wrote an account of the incident broadly consistent with that of the Applicant. Although she could not hear precisely what was said by the Applicant to the Police officer, the Applicant did not raise his voice or sound aggressive.
3. Following his remark to the Police officer the Applicant was taken into custody. His phone was handed in the next day, it having been found in the garden in front of the club. On release, the Applicant said was told he had to "go to court". Queensland Police charged the Applicant with the offence of Being drunk in a public place. He attended on what he understood to be the listed date but his name was not on the list. He made enquiries, he said, and was told by court staff that he was not on any of the upcoming lists and he was free to go. He heard nothing further. That charge was later dismissed at Southport Magistrates Court.
4. Before me the Applicant conceded he had possibly been "loud". He described what he had said as "unnecessary feedback", a turn of phrase which I consider ill-advised. The Applicant acknowledged that he did not handle the loss of his mobile phone as calmly as he should have. He conceded he should have treated the Police officer with more respect and better explained his concerns. The incident did not involve any violence or threats of violence.
5. I observe that conduct in 2010 and 2013 occurred some 11 and 9 years ago, respectively. As was pointed out on the Applicant's behalf, these matters also were known to Police when the Applicant was first issued a firearms licence in 2016. I do not consider that this conduct should be afforded great weight.
6. Between 2013 and 2021, except for a traffic infringement, the Applicant did not come to adverse Police attention.

Recent events

1. On 25 January 2021, NSW Ambulance Service called Police to an address in Bywong following an altercation between the Applicant and his father-in-law. The ambulance officer reported that the Applicant's father-in-law had suffered a broken nose, serious bleeding to his eye socket and was finding it difficult to breathe. After speaking with Police in the back of the ambulance, the Applicant's father-in-law was conveyed to Queanbeyan Hospital for further treatment.
2. Police attended the Applicant's property and observed that he did not appear to have any injuries. Neither the Applicant nor his father-in-law wanted to provide much detail about what had occurred.
3. Police seized all the Applicant's firearms and ammunition and made an application for a Provisional Apprehended Violence Order (PAVO) for the protection of the Applicant's father-in-law, notwithstanding that, from the BWV, the Applicant's father-in-law wanted nothing to be done about what had occurred. The PAVO was later withdrawn at Queanbeyan Local Court at the request of the Applicant's father-in-law.
4. There was some confusion about how the altercation between the Applicant and his father-in-law arose. It appears from the Applicant's evidence that they had been at the nearby home of another person and the Applicant was driving his father-in-law home in his ute. They argued and the Applicant pulled over and told his father-in-law to get out of the ute. The Applicant gave a consistent account that his father-in-law had then grabbed him by the throat, and in order to get him off him, had "lashed out" and punched him in the head 2 or 3, or possibly, several times. The Applicant denied that what he had done was 'an assault' because he had to get himself out of "the situation" and, as soon as his father-in-law let go of his throat, he stopped punching him.
5. The Applicant said there had been previous disagreements with his father-in-law but he had always just "walked away". On this occasion, in the car with the seat belt on, he said, there was nothing else he could do.
6. The Applicant said that he observed that there was blood on the seat and took photographs, which were available to me and were verified as being taken shortly afterwards. In his evidence he said that his father-in-law had been drinking all day, and, as alcohol thins the blood, this accounted for the appearance of so much blood on the car seat.
7. The Applicant said that he is a small person whereas his father-in-law, notwithstanding being 6' 2", is a large man with huge hands. Lauren Margules said in her evidence too that her father had huge hands. Ms Mavin said the Applicant's father-in-law is "twice [the Applicant's] size".
8. The Applicant said that his father-in-law has mental health issues, but I could find nothing in the material before me to support that assertion, although in the COPS entry in relation to the alleged incident in September 2021, which is discussed below, it was recorded that the Applicant's father-in-law said he was seeing a counsellor.
9. It was submitted on the Applicant's behalf that what had occurred was a momentary reaction to the violence perpetrated by the Applicant's father-in-law - he felt he was unable to escape, was isolated and needed to defend himself.

Altercation of September 2021

1. According to the Applicant's affidavit of 28 January 2022, after the incident in January 2021, the tension between him and his father-in-law largely resolved and they regularly attended each other's' homes. Then, in September 2021, the Applicant's father-in-law allegedly attacked him. There was no evidence that the Applicant retaliated in any way to the alleged attack. An ADVO was issued for the protection of the Applicant and his family. The Respondent submitted that that ADVO was not relevant to the matter before me, but I disagree. It highlights that the relationship between the Applicant and his father-in-law has been somewhat fraught and that it is not necessarily the Applicant who is responsible.

References

1. Barry Carne wrote that he had always found the Applicant to be cautious and conscientious in the use of his firearms.
2. Amresh Sharma is a senior project manager in the government department in which the Applicant works. He found the Applicant to be principled and quick to volunteer to help others. He wrote of his trustworthiness in high stress situations, in which he remained calm.
3. Geoffrey Welch met the Applicant through work and they have become very close friends. He was aware of the incident with the Applicant's father-in-law. He did not consider the Applicant would have ever acted unlawfully.
4. Divya Mahajan leases a property to the Applicant, and was aware of the incident with the Applicant's father-in-law but did not consider the Applicant posed any risk in the use of his firearms.
5. Trevor McLeod has known the Applicant for 25 years. The Applicant was a friend of his son. He also came across him in his capacity as the local Police officer, when the Applicant came to Police attention. He said that in those days the Applicant was "spirited" and well-liked by his mates. Since then he has observed him mature into a forthright and respected man. He is aware of the AVO against the Applicant in relation to his father-in-law. Nonetheless he considers the Applicant to be a peaceful man. In his evidence he said he has never witnessed the Applicant engage in threatening behaviour.
6. Darren Brown is an old school friend of the Applicant. He considered what occurred between the Applicant and his father-in-law to be very surprising and uncharacteristic as he has always known the Applicant to be non-violent. He was aware of the allegations in relation to the Applicant in respect of his father-in-law, but, in his evidence, he said he had never seen the Applicant act impulsively or violently. He was unaware of what had occurred on the Gold Coast in 2013.
7. Harold Bradley and Sandra Mavin, run a sheep and cattle primary production business on a number of properties. They initially met the Applicant through his father-in-law and they are aware of the "issues" between them, but do not take sides. Ms Mavin said they were aware of what had transpired between the Applicant and his father-in-law in January 2021, namely that the Applicant had punched his father-in-law because he had his hands around his throat. They wrote that the Applicant is not rash in his decision-making and they have always found him sensible when using firearms. Neither had seen him violent.
8. Lauren Margules, the Applicant's wife, wrote of both her and the Applicant growing up on the land. He works hard to support the family with income from his IT employment and earnings from working the land and running stock on two properties.

Is the Applicant a fit and proper person to hold a firearms licence?

1. Section 11(3) of the Act requires that the Tribunal be 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.
2. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and 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: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
3. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
4. The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace. The Respondent relied upon the Applicant's history with the Police, especially the events of January 2021.
5. Nearly all of the Applicant's referees either referred to the incident with the Applicant's father-in-law, or were such close associates of the Applicant in the close rural community, that I am prepared to accept that most were more than likely to have been aware of the incident. Many wrote of the Applicant's caution in the use of his firearms and he was considered by some to exhibit calm in stressful situations. The violence towards his father-in-law was described by more than one referee to the effect, as being uncharacteristic.
6. Mr McLeod's evidence was of interest as he knew of the Applicant in his youth, in his capacity as the local Police officer. His evidence was to the effect that, at that time, the Applicant was "spirited", which I accept referred to the Applicant's multiple engagements with Police as a youth. He said he had never witnessed the Applicant engage in threatening behaviour. Importantly, Mr McLeod has observed the Applicant to have matured into a forthright and respected man, and peaceful in his ways.
7. As discussed above, I have placed little weight on the Applicant's conduct when he came to the attention of Police in 2003 to 2006. The referees, especially Mr McLeod, suggest that the Applicant has become significantly more mature since that time, and is a far more considered person which, no doubt, is reflective of his family responsibilities.
8. The events of 2010 are now over 10 years ago. The other historical matter, in 2013, is itself, now nearly 9 years ago. Notwithstanding his unfortunate description before me of his conduct in 2013 as providing "unnecessary feedback", I attach little weight to this incident, especially as it did not involve any threats of violence and the charge was dismissed. I acknowledge the Applicant's concession that he should have treated the Police officer with more respect.
9. As to the incident involving the Applicant's father-in-law, the evidence, which I accept, was that the Applicant had acted in self-defence when his father-in-law had grabbed him by the throat; there was no evidence whatever to the contrary, although the Respondent sought to discredit the Applicant's account by suggesting the vehicle was in motion at the time of the incident. Notwithstanding the difference in their ages, the Applicant's father-in-law was, according to the Applicant, his wife, and Ms Marvin, a much bigger person. From the BWV he appeared to be a large man. That the Applicant inflicted what appeared from the ambulance report and the BWV significant injury to his father-in-law's face was explained by the Applicant as having to continue punching him until he let go of his throat. I observe that the Applicant's father-in-law is or was subject to an ADVO in relation to an alleged attack on the Applicant in September 2021.
10. For these reasons, I am comfortably 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.

Public interest

1. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise the discretion.
2. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
3. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act 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. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
4. The "public interest" factor allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
5. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. 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, at [64] - [66].
6. The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
7. The Applicant was initially authorised to possess and use category AB firearms on 7 April 2016 for the genuine reasons of Animal Welfare (Animal Handler), Recreational Hunt (Owner Rural Land) and Recreational Hunt (Permission to shoot). He said that he requires a firearms licence to control vermin and protect his land. In addition, he regularly participates in authorised eradication campaigns on behalf of government authorities. Attached to the Applicant's affidavit of 24 February 2022 were photographs of rabbit diggings around one of his water tanks, creating he said, a risk to the structural integrity of the tank. He also annexed a copy of an article in the Regional Independent dated 2 February 2022 which details the increasing rabbit population in the Lake George area. He believed rabbits were living under his container shed and, he could not pull down the shed simply to destroy the warren and could not bait the rabbits as the shed is next to his chickens, making the risk of baiting too high. In his experience, he wrote, that in any event, baiting rabbits is ineffective. He was also concerned about birds and their own working dog eating poisoned rabbits.
8. Barry Carne, who owns the property adjoining that of the Applicant, wrote of a dramatic increase in the rabbit population in the area, causing damage to the land. The burrowing between his property and the Applicant's is so severe that the integrity of dam walls is at risk. He and the Applicant participated in baiting under the auspices of the Local Land Services but it returned no discernible results. Lauren Margules wrote, in addition to the rabbit problem they have lost chickens to foxes or feral cats. Injured sheep and cattle require to be euthanised. She also wrote of multiple instances of injured kangaroos which the Applicant, formerly, would euthanise. The USB supplied by the Applicant showed multiple dead kangaroos, apparently as a result of road kill.
9. Private interests however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. I accept though that, there is some public interest in law-abiding farmers and graziers having access to firearms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66]. In the Applicant's case there was significant evidence that his property is infested with rabbits and that they are very difficult to eradicate. I accept that he has participated in feral animal control on a community basis, and that he is called upon from time to time to humanely deal with injured native animals.
10. The caveat in McGrath is that those on the land having access to firearms must be law-abiding. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, the Applicant appears to have been something of a tearaway as a young person. The events of January 2021 are discussed above, in which I have found that the Applicant acted in self-defence. Notwithstanding the apparent continued issues with his father-in-law the Applicant has not again resorted to retaliation.
11. 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 that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. In my view there is no real and appreciable risk to public safety in the Applicant having a firearms licence.
12. I therefore find that it would not be contrary to the public interest for a firearms licence to be issued to the Applicant.

DECISION

1. For the reasons given above: 1. The decision of the Respondent to refuse the Applicant's application for a firearms licence is set aside. 2. A category ABC firearms licence is to be issued to the Applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2022