Milhailoff v Commissioner of Police, NSW Police Force

Evidence

1. The Applicant provided two "replies" to the decision under review, by way of his evidence. Before me he gave evidence and was cross-examined.
2. The Respondent provided material in accordance with s 58 of the ADR Act and later, supplementary documents. Material filed by the Respondent included videos which the Applicant had made with his phone of exchanges with his neighbour. As discussed at the hearing, I would review the recordings after the hearing, which I did.

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.

Applicant's firearms history

1. The Applicant has held a Category AB licence firearms issued under the Victorian Firearms Act 1996 (the Victorian Act) since February 2014 (Victorian licence). His Victorian licence contained a special condition to notify the Licensing & Regulatory Division of the Victorian Police (LRD) of any change of residential address within 14 days of the change.
2. In February 2015, the Applicant's Victorian licence was suspended when he was served with an Interim Family Violence Intervention Order (IFVIO). The Notice of Suspension informed the Applicant that it was proposed that his licence be cancelled, and invited him to make submissions within 28 days as to why that should not occur. The Applicant made no submissions and his licence was cancelled on 21 July 2015. On 10 August 2015 the cancellation was reversed but his licence remained suspended. The Applicant said the suspension/cancellation had been because of the IFVIO.
3. His Victorian licence was renewed in 2019.
4. In about October 2021 the Applicant relocated from Victoria to country NSW. He did not notify LRD of his change of address, nor did he, at that time, seek a NSW firearms licence.
5. The Applicant's most recent Victorian licence expired on 12 April 2024. On 22 April 2024, the Applicant surrendered his firearms to Coffs Harbour Police Station. On 29 April 2024, he applied for a firearms licence in this State.

On what basis was the Applicant's licence application refused?

1. In the decision under review the decision-maker relied on the Applicant's history of confrontational behaviour involving his neighbour reported to Police in relation to work being carried out on the Applicant's property which the neighbour believed was in breach of council guidelines.
2. Before me, however, the Respondent did not rely solely on the Applicant's reported conflict with his neighbour and relied on 4 additional bases, which are also discussed below.

Dispute with neighbour

1. The Applicant denied he is or was, an aggressor in the ongoing dispute with his elderly female neighbour. The Applicant has complained to Police about the neighbour on several occasions particularly about her blocking access to his property. She has complained to Police also, alleging the work being done by the Applicant does not comply with council requirements. She sought an AVO against him, which he, at significant expense, successfully defended. The Applicant gave evidence of protracted difficulties with his neighbour, who, he claimed, complained to council about the work being done on a weekly basis.
2. The video footage shows neither he nor his neighbour being aggressive, but rather the Applicant approaching and filming the neighbour, and, it was submitted by the Respondent, on one view, taunting and confronting her. I do not agree that what is depicted amounts to "taunting and confronting" the neighbour in circumstances where she appeared to be blocking access by work trucks.
3. I make no comment about the reasonableness of the concerns of the Applicant's neighbour. There is no contention that at any time has the dispute escalated beyond heated exchanges. They both apparently have engaged lawyers. It is clear that the Applicant suffered significant and prolonged disruption to his building work. As annoying as it may be to the Applicant to be in continual conflict with his neighbour, and the likely stressful impact on the family and delays to the project, I place little weight on the conflict in the context of my consideration.

Non-compliance with Victorian firearms legislation

1. Under the Victorian Act, if a licence holder is not ordinarily resident in Victoria and does not require the licence for work purposes in Victoria, the licence must be cancelled: s 46A. To this end, s 139 of the Victorian Act provides that a licensee must notify the Chief Commissioner within 14 days if, amongst other things, his permanent place of residence or the address where his firearms are ordinarily stored changes.
2. Section 36(1) of the Victorian Act provides to the effect that a licence holder must comply with any conditions to which the licence is subject. Special conditions were imposed on the Applicant's Victorian licence, included an obligation to notify if there was a change in residential address.
3. The Applicant's evidence was that in about October 2021 he and his family moved from Macclesfield in Victoria to a property near Coffs Harbour where they were building a new home. He said that there were many things to do in moving but he knew he had to change all his addresses. Consistent with this, on about 25 October 2021, he obtained his NSW driver's licence. Notifying about the change with respect to his firearms, he said, "slipped his mind". He said he told his wife that he needed to do it. In his evidence before me he said it was "not a priority". In cross examination the Applicant acknowledged that he had an obligation to comply with the conditions of his licence but that it had "got away from him" and that he should have made a greater effort. He said he phoned the LRD twice when he came home from work, but it was out of hours and he could not speak to anyone. He said he phoned the NSW Police and was told he needed to join a gun club, and to "go to the website". This latter engagement does not address his obligations with respect to his Victorian licence.
4. He said he "hit a roadblock" because his gun licence was locked up in his gun safe which was at the back of the shed in which they were living and all their furniture and other belongings were piled in front of it and it couldn't be accessed. He described how the safe was bolted to the wall and the floor and, because of all the belongings in front of it, and therefore, in his view, did not present a safety concern.
5. His explanation for failure to notify the LRD seemed somewhat disingenuous. He simply did not make the effort to meet his obligations; it was "not a priority". His attempts to comply with his obligations were best, perfunctory - he did not phone the LRD during office hours; he could have attempted to provide the notification online; failing which, he could have emailed the LRD with the information and sought instruction on how to formally provide notification. His explanation that he was hampered because his licence was inaccessible was also unsatisfactory, because, it is highly likely, in my view, that had he notified the LRD, his name could have been readily cross-matched with the data held by the LRD; it is highly unlikely that he could only have complied with his obligations if had the physical licence in his hand. His assessment that his firearms were adequately secured does not overcome his obligations.
6. It is plain from the LRD evidence that the Applicant did not notify a change of address from October 2021. This was a breach of the s 139 of the Victorian Act and a breach of his licence conditions: s 36. For the Applicant to describe himself as being a "responsible gun owner" is inconsistent with his conduct with respect to his Victorian licence. I consider this dereliction of his obligations to be of significant weight.

Non-compliance in relation an undertaking in relation to an Interim Family Violence Intervention Order (IFVIO)

1. The Applicant wrote in his submissions that he had ended a relationship and his then partner had taken it badly. She had returned to the property, and, with the assistance of a "thug", threatened him and endeavoured to take some of his belongings. He called the Police and she was prevented from removing some items. From the available evidence there was no suggestion that the exchange between the Applicant and his ex-partner involved the use or threat of use of firearms. He said he understood his ex-partner had received advice that if she were to obtain "an AVO" against him she could access the property in his absence, and that she then sought, and obtained, an IFVIO against him. He said he went to court to represent himself in defending the IFVIO, which apparently required his attendance for 3 days. When the matter was still not concluded, in the "last hour" of the third day, he said he reluctantly agreed to a "12-month undertaking" with no conviction recorded, simply to end the proceedings. At the time he had about 40 employees and could afford no more time away from work. He said that, as a condition of the undertaking, his ex-partner was also not to contact him. Because of the undertaking the IFVIO application was withdrawn, he said. Correspondence with Victoria Police provided by the Respondent confirms that the IFVIO was withdrawn.
2. Somewhat confusingly, on 13 April 2015, the evidence was that the Applicant was charged with "contravening the family violence final intervention order". The Applicant said that he had earlier deleted his ex-partner's contact on his phone. He received a text from an unknown number and asked who it was and that he did not know the number. It was his ex-partner who had texted him and she complained to Police that his replies were in breach of his undertaking. This, he said, was the basis for the alleged breach, notwithstanding according to him, his ex-partner initiated the contact thereby breaching the 'condition' that she not contact him. On 27 August 2015, the Applicant, who was unrepresented, pleaded guilty in Ringwood Magistrates Court of contravening a Family Violence Final Intervention Order. No conviction was recorded and he was fined $750.
3. The Applicant denied that he had ever been the subject of "an AVO", and I note that this was the Applicant's description of the proceedings against him. It was unclear to me though if the Applicant may have, by giving the "undertaking", in fact, consented to a Family Violence Final Intervention Order (FVFIO). It is difficult to see how he could be prosecuted for "contravening the family violence final intervention order" if there had not been an Order by the Magistrates Court.
4. There was no evidence to contradict the Applicant's assertion that the facts giving rise to the alleged breach were a text exchange contrived by his ex-partner. I observe that, in any event the confrontation with his ex-partner was almost 10 years ago. Consequently, I attach little weight to the Applicant being subject to an IFVIO nor his alleged breach because of the confusion in relation to the "undertaking". It remains though, relevantly, that the Applicant knew he had been subject to an IFVIO, which using his expression, was an interim "AVO".

Non-compliance with NSW Firearms legislation

1. Section 7A of the Act is to the effect that it is an offence to possess or use a firearm unless the person is authorised to do so by a licence or permit. The Applicant did not have a NSW licence or permit from the time he and his family moved to NSW in October 2021.
2. The Applicant wrote that he was so busy with the building work that he let his Victorian licence lapse and had to "reapply". This, it seemed to me, suggested that the Applicant failed to understand that he was no longer eligible to hold a Victorian licence once he moved to NSW: s 46A of the Victorian Act. He thought he could merely "re-apply".
3. There can be no dispute that when the Applicant surrendered his firearms to NSW Police at Coffs Harbour on 22 April 2024, his possession of firearms in NSW had been unlawful for about 2½ years. I do not accept that he thought renewal of his Victorian licence - which in any event he did not do - would suffice. I attach significant weight to his failure to obtain a NSW licence and to register his firearms in this State. It is critical to the licensing regime, and hence the safety of the community, that Police are aware who has firearms and where those firearms are located.

False statement in application

1. In the Applicant's NSW licence application made on 29 April 2024 he answered "No" to each of the questions: At any time within the past 10 years, have you been subject to an injunction, apprehended violence order, interim or provisional apprehended violence order, restraining order or any other prescribed order or decision in NSW or elsewhere? Have you ever had a firearms licence or permit suspended or revoked, whether in New South Wales or elsewhere? (Tribunal's emphasis)
2. Notwithstanding my concerns about some ambiguity about whether there was a final FVIO there was no dispute that the Applicant was subject to an interim "AVO" in 2015. His response to the plain question asked was clearly wrong. The Applicant was well aware of the circumstances giving rise to the IFVIO and that for some days he had defended the imposition of an AVO. His omission cannot be dismissed as a mere oversight.
3. While the question refers to "AVO", I accept that the Applicant knew he had been the subject of an interim AVO in Victoria, and consequently, his response to the question was incorrect.
4. In relation to the second question, the Applicant's Victorian licence was suspended and cancelled, although re-instated, in 2015. As discussed above, in relation to the first question, in 2015 the Applicant was subject to an interim "AVO" in Victoria. The Applicant said in his evidence that he wasn't sure what had occurred - he had "just surrendered" his gun and licence. The Applicant said in cross examination that he could not recall receiving the Notice of Suspension or Notice of Cancellation, although the copy of the Notice of Suspension I had before me records a date of service. When asked if he remembered that his Victorian licence had been suspended and cancelled the Applicant said he could not remember; he said he was "more aware" that his firearm had been surrendered.
5. The Applicant said when he had renewed his Victorian licence in 2019 similar questions had been asked and he had responded the same way. He said he "knew they [LRD] would check". I did not have a copy of that application available to me, nor do I know the protocols associated with licensing in Victoria, and I make no comment about his assertions.
6. The Applicant was prepared, on his own evidence, at least as far as his Victorian licence was concerned, to make responses which, at best, can be described as reckless. It is likely that he adopted this same cavalier attitude in the completion of his NSW application.
7. It is clear that on a plain reading of the question in his NSW application, it was undeniable that his Victorian licence had been "suspended or revoked" and that it should have been declared. Putting aside the cancellation/re-instatement, it remained that the Applicant's Victorian licence had, for a period, been suspended. His response to the question was clearly wrong.
8. The seriousness of deliberate failures in this regard is reflected in the offence in s 70 of the Act which provides that a person must not, or in connection with an application under the Act, make a statement or provide information that the person knows is false or misleading with a material matter. Contravention of this section could incur a punishment by imprisonment of up to 5 years. The Tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: see, for example, Leatham v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121 at [18].
9. In Balle v Commissioner of Police [2021] NSWCATAD 187 I said at [14]: If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 (Bladen).
10. The Applicant's answers were clearly incorrect and I consider that, had he turned his mind to the questions, he must have known that his responses were false. That he thought the suspension was "part of the process" following the IFVIO, was, to some extent, correct. He understood the "surrender of his licence" had been precipitated by the imposition of the IFVIO. I do not accept that the Applicant did not understand his Victorian licence to have been suspended 2015.
11. Even if the error was a result of inattention that level of carelessness is not appropriate from a licence holder.
12. I consider his failure to correctly answer the questions, and thereby having provided false or misleading information in connection with his application, is given significant weight.
13. Recently, in GGJ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 73 I said at [13]: The success of the licensing regime is dependent on licensees providing a full and frank disclosure In their communications with the Registry: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197. Those who have not done so, despite posing no other risk, may nevertheless fail the 'public interest' test as their conduct threatens the success and integrity of the licensing regime. The seriousness of deliberate failures in this regard is reflected In the offence in s 70 of the Act which provides that a person must not, or in connection with an application under the Act, make a statement or provide information that the person knows is false or misleading with a material matter. Contravention of this section could incur a punishment by imprisonment of up to 5 years. The Tribunal has pointed out that the operation of the legislative scheme depends on applicants providing true information: Leatham v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 121, [18]; Keys v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 91 at [104].
14. In Bladen at [53], the Tribunal spoke about the importance of a proper system of firearm licensing which depends, in part, on applicants providing true and correct information in their applications.
15. The Applicant has not provided a full and frank disclosure in his application. The effect is that the licensing regime, which is dependent on licensees providing correct information, is jeopardised. I note the Applicant's cavalier attitude with respect to his Victorian application that the LRD would already have the information and "would check". Presently, as there is no national system of licensing the Applicant's relevant interstate history is not automatically available to the NSW Police, making it reliant upon being provided with accurate information in an application for a licence. As such, the Applicant's conduct threatens the success and integrity of the licensing regime. I have placed significant weight on this conduct.

Public interest

1. The Respondent contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.
2. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and 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 a discretion adversely to an individual.
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 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]. As I explained in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [95], the Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct, using past conduct of the Applicant as a significant guide: Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
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]. 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].

Conclusion

1. The Applicant, as I have said, describes himself as a "responsible gun owner". To hold a firearms licence is a privilege, not a right: s 3(1)(a) of the Act. The underlying principles 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; the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Huckel v Commissioner of Police, NSW Police Force [2008] NSWADT 347 at [41]. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at [25]: In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.
2. I have attached significant weight to the Applicant's failure to comply with his Victorian obligations, his failure to comply with his NSW obligations, and his errors in completing the application, whether deliberate or otherwise. Based on the facts and circumstances discussed above in relation to the Applicant's disregard for licensing regimes over an extended period of time, I cannot be confident that the Applicant would continue to possess and use firearms only in accordance with the strict legislative requirements set out in the Act. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In all the circumstances, I am comfortably satisfied, that it is not in the public interest for the Applicant to be granted the privilege of a firearms licence.

DECISION 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: 21 October 2024