Marshall v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-08-21

Introduction

David Marshall ("the Applicant") has sought external review of a decision by a delegate of the Commissioner of Police ("the Commissioner" or "the Respondent") under the Firearms Act 1996 ("the Act"). The Respondent determined to refuse the Applicant's application for a Category AB firearms licence.

Background

The Applicant has previously held firearms permits and licences in a number of different capacities. He held a Category AB licence until it was suspended and ultimately expired in 2017. In May 2018 he re-applied for the Category AB licence for the genuine reason of recreational hunting - vermin control, however, his application was refused on the basis that it would not be in the public interest for the licence to be reinstated. That refusal was affirmed on internal review and he applied to the Tribunal for review of that decision.

The Issues for determination

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 licence under the Act.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
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 paragraph [23].
The discretion must be exercised keeping in mind the activities which are authorised by a licence under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to him.

The Public Interest

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."
The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. 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.
"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

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 statements of Senior Constable Jan Colbran and Sergeant Jonathon Cassidy, as well as a significant volume of other material relating to the Applicant's record relating to the use or misuse of firearms and complaints made against him by his former wife. In these reason I will refer to the Applicants former wife as "W".
Neither Senior Constable Colbran nor Sergeant Cassidy was required for cross-examination.
It is common ground that the Applicant and W share a child ("Z").
The Commissioner also relies on records that show that in 2016 the Applicant was charged with an offence related to keeping a loaded firearm in a vehicle when it was not being used. The charge was found proven and the Applicant was placed on a 6-month good behaviour bond.
The Applicant relies on his own evidence and submissions. He submits that the contentions against him should be rejected. He denies that he has ever acted inappropriately towards W or that he has ever made any threats in regard to her or her new partner. He has provided a number of character references and a certificate from a Consultant Psychiatrist, Dr Sanjay Sinha.

The Respondent's case

The Respondent relies on both open and confidential evidence. The Applicant has not been provided with copies of the confidential material.

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Sergeant Jonathon Cassidy

Sergeant Cassidy is the Orana Mid-Western Police District Licensing Supervisor. He is a subject matter specialist in Alcohol, Firearms and Security related legislation.
In 2017 he made arrangements for the Applicant's firearms to be seized as a result of his firearms licence being suspended. The suspension was due to the Applicant becoming subject of an Interim Apprehended Violence Order ("IAVO").
Sergeant Cassidy stated that he is aware that W has made a number of reports in relation to the Applicant's conduct. He stated: In my opinion, it is not in the public interest for Mr Marshall to hold a firearms licence. In addition to the numerous reports that have been made in relation to him whilst he was subject to an IAVO, and an offence in QLD for transporting a loaded firearm, he has made conflicting statements about his genuine reasons for holding a firearms licence.
Sergeant Cassidy provided a letter to the Firearms Registry in relation to the Applicant's application for a firearms licence. In that letter, dated 31 January 2020, he stated: As late as last week a conversation was had with David MARSHALL over the phone. It's apparent he can't let go of the past. He was continually bringing up matters that have previously been investigated and believes he was hard done by. Not once did he give a valid reason for why he needs a firearms licence. He is a boiler maker by trade and from my knowledge never has conducted vermin control. The only possible need he would have for a firearm is recreational hunting. It is my opinion that MARSHALL is not a fit and proper person to have access to firearms. He has not provided any genuine reason to my knowledge for why he requires a firearm's licence. He seems to be obsessing over things that have occurred sometime ago and can't let go of the past. This obsessive nature does pose a risk to others if he has access to firearms. Also he has demonstrated behaviour that would not suit a fit and proper person by sending an email to the mother of the DVLO who is not employed by the New South Police Force and never has been.
In his statement to the Tribunal Sergeant Cassidy explained those comments as follows: My comments in my letter dated 31 January 2020 regarding Mr Marshall's genuine reason were in response to comments he made in an email (extracted in the letter) sent to Senior Constable Colbran, Domestic Violence Liaison Officer at Dubbo, where he noted that his livelihood has been taken away and that he has been unable to commence work on mine sites. As far as I am aware, the only genuine reason that Mr Marshall has or has previously identified for holding a firearms licence is for recreational hunting/vermin control. He is not a professional shooter or a primary producer, and appears to be trying to suggest that he requires a licence for these reasons without having any justification for it.
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Senior Constable Jan Colbran

Senior Constable Colbran has been a police officer for 18 years and is currently a Domestic Violence Liaison Officer in the Orana Mid-Western Police District. Her duties include meeting with victims of domestic violence, investigating allegations of domestic violence offences, attending a number of courts to offer support and advise on matters before the court of a domestic violence nature and/or apprehended domestic violence. She also offers specialised domestic violence support and advice to many police officers.
She has been involved in investigating some of the reports that have been made in relation to the Applicant. She is also aware of other incidents that have been reported to Police in relation to the Applicant. She stated that the most recent report made in relation to the Applicant and the issue of custody of Z was in January 2020. In her opinion this suggests that the domestic situation between the Applicant and W is not settled.
Senior Constable Colbran stated that she has met and spoken with W on a number of occasions and found her to be an honest person who did not embellish incidents or act out of malice. She said that she often suspected that there may have been more to an incident than what W felt comfortable articulating.
Annexed to Senior Constable Colbran's statement is a copy of an email that the Applicant sent to her in January 2019. The email included references to domestic violence issues and firearms. She said that she was personally very upset about the incident and considered it to be very inappropriate behaviour on the Applicant's part.
In her opinion, it is not in the public interest for the Applicant to hold a firearms licence or for him to have access to or possess firearms.

Respondent's Submissions

The Respondent submits that there are a number of objection to the Applicant retaining his licence. These include: (a) the frequent reports that W has made to Police in recent years alleging threats of physically harm to her and her new partner; (b) that the Applicant was found guilty of a firearms storage offence in Queensland in 2016; (c) that the Applicant has demonstrated a lack of understanding of his obligations as a firearms owner and what he is permitted to do if licensed for "recreational hunting/vermin control";
The Respondent submits that it is not in the public interest for the Applicant to hold a firearms licence. It contends that in light of the history of alleged threats and the possibility of future disputes, the Tribunal could not be satisfied that there is no risk to the public safety if the Applicant were to be issued with a firearms licence.
It is further submitted that the Queensland offence is significant in that it suggests a lax attitude towards the handling of firearms. The Respondent submits that safe keeping requirements go to both the crux of the principles and objectives of the Act and the principles and objects of the Queensland legislation. Even where safe keeping contraventions lie at the lower end of the scale of seriousness, they can evidence an attitude that is still significant when determining whether a person should have a licence.
The Respondent submits that there is ambiguity in regard to the Applicant's reason for seeking a firearms licence. In his licence application he identified his genuine reason as "recreational hunting/vermin control" and has completed the accompanying a Genuine Reason Form. However, in the Applicant's submissions in relation to his application for internal review, his solicitor was noted that the Applicant currently runs a property with cattle and that he requires a firearms licence for farming purposes.
The Respondent also noted that in an email that he sent to Senior Constable Colbran the Applicant noted that as a result of the loss of his firearms licence he had been unable to commence work on some mine sites and had lost work which was a major part of his income. However, there is no evidence to suggest that the Applicant obtained income from the use of a firearm.
The Respondent noted that if granted, the licence would not permit the Applicant to use his firearms for the purposes of a primary production, business or employment or vertebrate pest animal control.
For these reasons the Respondent submits that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence.

The Applicant's case

The Applicant relies on his own evidence. As noted he has also provided a number of references which speak highly of his character.
The Applicant denies all allegations of domestic violence made against him. He denies ever making any threats to W or her new partner. He argues that the allegations are unsubstantiated. He stated that he has never threatened to, or actually, assaulted anyone and laments that these claims cannot be tested.
He does not recall making the comment that he would make W's life "living hell" but said that any comments that he made in relation to actions that he might take against W were a reference to actions in Family Court proceeding, not threats of acts of violence. He agreed that there are ongoing issues with respect to custody and that the matter is not settled.
He maintains that the allegations are deliberate actions by W and that she has falsified the claims to strengthen her position in relation to custody arrangements for Z.
He referred to information received by the Respondent on 28 February 2017 indicating that he has PTSD and other illnesses arising from a motor vehicle accident. He denies that information and questions the informant's motives in relaying this falsehood. He compared this to "other unfounded accusations" that W has made.
In relation to the COPS records of allegations that he made threats towards W he submits that the overwhelming majority of the COPS events are based on allegations that he has denied. He denies that any of the events transpired as W suggests and he stated that he has consistently denied the allegations on every occasion in which he has interacted with police.
He does not dispute that he went to W's residence About 7:00 am on 24 May 2017 without an invitation. He said that he did so because he was concerned about Z's welfare because W had informed him that her new partner was moving into the residence and he was bringing dogs onto the property. The Applicant contends that the issues that concern him are compounded by Z's special needs. He was concerned about Z's safety with the dogs. He does not dispute that he threatened violence in relation to the dogs on that occasion but he stated that he walked away without engaging in any violence. He agreed that he threatened to shoot the dogs but said that it was a spur of the moment comment made with the intention of protecting Z. The dogs were not shot.
He stated that he never made the threats towards W's new partner. He denies the allegation that he had made threats towards W's new partner on 6 September 2018 or at any other time.
He noted the record of an event on 2 June 2018 when Z was spending his first night at the Applicant's new home. He said that he was woken in the middle of the night by police knocking on the door. Z had apparently dialled 000 and claimed that he wanted to see his mum. Police conducted a welfare check and left with the understanding that Z was not in danger and was apparently unsettled on his first night in the new home.
In relation to the allegation that on 28 December 2017 Z had reportedly heard the Applicant say that he "will bash W and crush her to the ground" he stated that he never made the reported threat. He denied that he would ever make such a threat. He said that he finds it is curious that Z was returned to W on 26 December but no report was made until 28 December.
The Applicant does not dispute that on 18 March 2017 he and W had an argument about W's plans to travel to Darwin for a few weeks. He accepts that they had a disagreement but notes that W did not allege that any threats took place.
In relation to the allegation that on 8 April 2017 he had not returned Z to W before dark as agreed he said that he had Z for the day and that his mother returned Z at around 7:00 pm that night. He said that sunset was at 5:50 pm that night and that his undertaking had ben to return Z at "around sunset". He disputes the Respondent's characterisation of this event as "domestic incidents which have involved police".
In relation to the Interim ADVO he notes that the ADVO was withdrawn on 26 April 2018 and as a consequence of the withdrawal he was not afforded an opportunity to refute the claims that had been made against him in Court.
Further, he submits that the ADVO would not have been withdrawn if the Respondent if concerned about his guilt on the Queensland firearms charge. He stated that this is the only incident recorded against his firearms licence and that he is ashamed that he did not act in accordance with his responsibilities. He stated that he had erroneously thought that he could travel with his firearms stowed outside of view and in a way so that it could not be discharged. He also stated that he had attempted to undergo further training in relation to his responsibilities as a firearms licence holder but that COVID-19 has prevented him from attending any such course. Due to the ongoing pandemic no courses were being run within the Applicant's proximity.
In relation to Sergeant Cassidy's letter dated 31 January 2020 the Applicant submits that 'Vermin Control/ Recreational hunting' is listed as a valid reason for seeking a firearms licence in the Act. Accordingly, there must be doubt over Sergeant Cassidy's opinion in relation to the Applicant and the Act. He stated that he acquired the farm about two years ago. He also indicated that the loss of his firearms licence meant that he lost the opportunity to operate in the game meat harvesting industry. He also stated that his ability to work on mine sites has been affected because the sites require police clearance. However he agreed that he has not attempted to obtain a police clearance.
The Applicant notes that his conversation with Sergeant Cassidy was based around past events that had led to current circumstances. He accepts that he feels hard done by and he is not willing to shy away from telling his perspective in his discussions with the police. He said that this is particularly so when the discussions concern complaints of domestic violence that lack evidence.
In relation to the email the he sent to Senior Constable Colbran, the Applicant. Stated that this email was erroneously copied to the Senior Constable's mother for whom he had previously and repeatedly provided professional services. He accepts that copying the email to the Senior Constable's mother was inappropriate but stated that it was accidently included in his email due to his limited computer skills. When his error became apparent he extended an unreserved apology.
He denied that he rang W to accuse her of causing him to lose his firearms licence. He said that after she made the phone call to him, he merely explained to her that he had been affected by her actions.
The Applicant accepts that the fundamental object of the Act is to ensure public safety through the effective management and oversight of licensing. However, he submits that the circumstances of this matter do not exclude him from holding a firearms licence. Accordingly, he submits that the Commissioners decision should be set aside and that the correct and preferable decision is to grant the licence.
The Applicant submits that there is no risk to the public if he is granted a firearms licence. In support of that submission he relies on the report of Consultant Psychiatrist Dr Sanjay Sinha dated 18 July 2019. In his report Dr Sinha wrote: Based on the information provided to me never having seen Mr Marshall before, I have not been able to find any objective evidence of any psychiatric illness. I have not diagnosed him with any psychiatric condition based entirety on his current mental state examination where he appears cognitively intact, is euthymic, has no thought or perception disorder and has good judgement and Insight. • I do not feel in his current state he is going to have any problem with his ability to exercise cautious or reasonable control over firearm. • I do feel he has a current ability to form rational judgement and exercise will power to control physical acts in accordance with rational Judgement. • In his current mental state, I see no risk to public safety if he had his firearm in his possession. However, I did not see him when he was having these incidents with his ex and I have no records from any medical service that outlines his emotional state then. As my assessment on his past emotional state relies entirely on David's self-report and the letter from the licencing authority declining his licence, I do not feel based on the information that I have that he suffered from any psychiatric illness even then. To me the incidents appear to be as a result of anger and hurt over the separation where he would still manage to control his impulses is not harming anyone. I do not feel such a situation would recur, as his relations with his ex-partner are much better now and has regular weekly access with his child.
Dr Sinha did not give evidence at the hearing.

Consideration

Each of the parties has referred to Tribunal decisions that relate to the Act and the review of decisions by the Respondent to refuse firearms licence applications. The law is largely settled in regard to applications of this kind.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act. The underlying principles stated in section 3(1) of the Act emphasize that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.
The fact that numerous reports have been made in relation to the Applicant is not conclusive. He disputes the allegations against him and he has not had the opportunity to test them.
The principal issue in this matter is whether or not there is a risk to the safety of the public, including the Applicant, if the Applicant is permitted to possess firearms. It is not possible to predict with absolute certainty where the risk lies in any particular situation. The decision in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 is often cited in regard to the issue of risk. The Tribunal stated at paragraph [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.
However, only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. In particular, the likelihood of risk to the safety of the public must be assessed by reference to prior conduct: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].
The Respondent contends that it is not in the public interest for the Applicant to be granted a licence under the Act. The relevant interest is the interest of the public, as distinct from the interest of an individual or individuals.
I recently considered various authorities in my decision in EJU v Commissioner of Police [2020] NSWCATAD 270. In that matter there was significant discussion in relation to stressors that the Respondent identified as relevant to the question of whether or not the applicant in those proceedings should be granted a firearms licence.
Most of the stressors that the Respondent identified were directly related to Family Court proceedings involving EJU and his former partner. In that regard there is some similarity between the present case and that of EJU v Commissioner of Police. The significant difference in this matter is that Family Court proceedings have not been resolved and the areas of dispute between the Applicant and W are ongoing.
That context creates a significant difficulty in that both the Applicant and W appear to be decent people who both have a genuine desire to meet Z's needs. However, their ability to interact amicably is severely impeded. W has made serious allegations in regard to the Applicant's conduct. The Applicant has denied ever engaging in the alleged conduct and he asserts that W has made the allegations in an attempt to fare better in the custody dispute.
The allegations are unsubstantiated and, at their highest, those involving reports of what the Applicant is alleged to have said to Z are hearsay. While both Senior Constable Colbran and Sergeant Cassidy is able to form a view in relation to the reliability of W's information, neither is able corroborate the allegations. Similarly, those persons who provided references in support of the Applicant are able to form a view in relation to the Applicant's character but they are not able refute W's allegations.
Dr Sinha has based his report on a single meeting with the Applicant. He is not able refute W's allegations and his assessment of the risk associated with the Applicant having possession of firearms is based on his observations during that single meeting. His assessment on the Applicant's past emotional state relies entirely on the Applicant's self-report and the Respondent's determination in refusing the licence application. He places the likelihood of recurring issues in the context of an improved relationship between W and the Applicant. However, in my view this confidence is unfounded. By the Applicant's own admission, the issues between them are ongoing.
Any past and present conduct that may be relevant in deciding whether the Applicant is a person who deserves the privilege of holding a firearms licence must be reviewed. Any propensity towards offending against the law must be regarded as of crucial importance. I have considered all the material presented by the parties, including the confidential evidence on which the Commissioner relies, and I have taken account of the competing considerations.
Where there has been, or is, a 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.
In this regard I consider that comments by Dr Sinha are informative. In his report to the referring doctor, Dr Sinha stated: I have met David for the first time today. I have your letter and the letter from the Firearms Licencing Authority that refers to 6 incidents of domestic in the context of his relationship breakup between 2017 - 2018. Most of these incidents relate to him saying angry things about his ex's new partner before his child. One incident involved him not returning his child on time and another incident over not wanting his child to go away on a holiday with his mum and new partner of his mum. None of these involved any actual act of violence or aggression and does not suggest him losing control over his moods or his behaviour. The issues appeared fairly frequently seen aftermath of separation where partners disagree on access on custody over the children. … He denies ever threatening [W] or his child. He does admit that he was upset that she had a new person in her life but he claims he would never hurt him. He denies ever being violent or aggressive with anyone.
These comments seem to suggest that while the Applicant denied that he intended to hurt anyone, he did concede that he had said angry things about W's new partner. Given that concession I accept that W has probably provided a reasonably accurate account of what was said.
The Applicant agreed that he threatened to shoot W's new partner's dogs. I accept that this was a spur of the moment comment in the heat of the discussion. However, it is likely that there were other rash comments also made in the heat of discussions. I accept that the Applicant has probably also stated that he couldn't handle it if there were another man in W's life, or Z's, and that he may just snap and kill him.
This conduct highlights the lack of control that the Applicant has demonstrated when confronted with a frustrating circumstance. In my view, regardless of whether or not Dr Sinha has correctly assessed the situation, a threat of this kind is to be treated seriously.
I have no reason to think that the relationship between the Applicant and W has settled. In these circumstances it is probable that spur of the moment threats will continue unless some form of intervention, such as anger management counselling, is put in place. While I do not think that it is very likely that the Applicant will resort to violent or aggressive behaviour, the risk exists. Threats are not to be condoned or ignored.
The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
The objects and principles of the Act state that the possession of firearms is a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a 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. The principle issue then is whether there is a risk to the safety of the public if the Applicant is granted the licence.
As has been frequently noted, 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. The Commissioner argues that the Tribunal could not be satisfied that the Applicant does not present a danger to public safety and, accordingly, it is not in the public interest for him to hold a firearms licence.
I agree with that view. I am of the view that there would be risk to the public if the Applicant were in possession of a firearm at a time when he was confronted with frustrating circumstances. Until such time as the Applicant has taken steps to deal with his ability to behave more appropriately when confronted with a frustrating circumstance, he should not be allowed to hold a firearms licence.
Should the Applicant re-apply on a later date, the question of the genuine reason for holding a firearms licence that he identifies will inevitably be resolved, as will his understanding of his obligations as the holder of a firearms licence.
It follows in my view that the correct and preferable decision is to refuse his firearms licence application. Accordingly I affirm the Commissioner's decision.

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: 11 December 2020

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (3)