Morgan v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-08-07

REASONS FOR DECISION

Bryce James Morgan (the Applicant) applied for a firearms licence in November 2023. He held a licence for approximately seven years until it was revoked in 2011.
The Commissioner of Police (the Respondent) refused to grant the firearms licence because the Respondent was not satisfied it would be in the public interest to grant the licence based mainly on the Applicant's conduct in 2011 where he committed numerous firearms offences.
The Respondent made the original decision to refuse the licence application on 6 December 2023 and at the Applicant's request conducted an internal review. On 1 March 2024 the Respondent's internal review affirmed the original decision.
The Applicant seeks review of the decision refuse him a firearms licence.

Material before the Tribunal

The application for review attaching the internal review reasons was before the Tribunal. The Applicant provided a bundle of evidence containing an unsigned undated statement of the Applicant, letters of reference, a certificate of completion for a firearms course with cover letter and a psychologist report, as well as written submissions to the Tribunal and the Respondent.
The Respondent provided a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and written submissions to the Tribunal and the Applicant.

Applicant's case

The Applicant contends he should be granted a firearms licence because he is no risk to public safety. The Applicant submits the offences occurred a long time ago when he did not fully understand the requirements of firearms legislation and through the taking of a course in January 2024 he has taken steps to improve his knowledge. The Applicant also submits he has demonstrated remorse for the 2011 offences, has learnt his lesson and poses no risk to public safety if he were to be granted a licence.

Respondent's case

The Respondent contends the correct and preferable decision is to refuse the firearms licence application because granting a licence would not be in the public interest (relying on s 11(7) of the Firearms Act 1996 (the Firearms Act)) The Respondent submits the Applicant has not demonstrated appropriate remorse for the 2011 offences nor has the Applicant demonstrated he now has the necessary understanding of firearms legislation obligations and requirements sufficient to be granted a licence.

Jurisdiction

The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.
The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17].

Relevant Legislation

The underlying principles of the Firearms Act are set out in s 3 and include: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms…
Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing: (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Applicant's history

The Applicant held a firearms licence for approximately seven years before he was charged with numerous firearms offences in 2011. At that time the Applicant's firearms licence was revoked.
Relevant circumstances surrounding some of the charges are set out in Director of Public Prosecutions (NSW) v Morgan [2013] NSWSC 1474 and relate to the Applicant's attempt to sell an AR-15 assault rifle with one missing part, a prohibited firearm, online in January 2011. This brought the Applicant to the attention of officers of the Respondent and a search of the Applicant's home and premises discovered an extensive amount of ammunition and firearm parts, a prohibited weapon (a cross bow) and a modified prohibited weapon. Much of the ammunition and many of the firearms, firearm parts and the cross bow were in the open, unsecured in the house and premises. In December 2011 the Respondent also intercepted consignments addressed to the Applicant containing firearm parts.
Following a number of court decisions including the decision cited above, the Applicant was sentenced, receiving a 12 month s 10 bond under the Crimes (Sentencing Procedure) Act 1999, for the following offences as a result of his conduct in 2011: 1. Importation of prohibited imports - two counts; 2. Possession or use of a prohibited weapon without permit; 3. Possession of an unauthorised prohibited firearm; and 4. Possession or use of a prohibited weapon - 49 counts.
In 2022 the Respondent became aware the Applicant had purchased firearm parts online from a dealer in Tasmania in 2014. The Applicant submits the purchases were made on behalf of his father.
In email correspondence between the dealer and the Applicant, on 3 October 2014 the dealer notifies the Applicant his items are in customs and sends a final invoice. The dealer requests a copy of the Applicant's licence, and for him to confirm his delivery address. On 8 October 2014 the Applicant responds: I have just transferred the total ($999.00) to your account for the TSD Slide and .22 barrel. Please find attached photo of licence. (this is a edited version for security, image removed, as you will see. If you require an unaltered version please let me know) This is going onto my old man's licence, hence his licence. If you could send to; Bryce Morgan … Or you could substitute for Greg Morgan if you prefer, since its his licence, same address since l'm back at home for the time being. Also are you looking at importing again in the future? In particular complete Cat H handguns? As there were a few models we were looking at that have not been offered in Australia that would be compliant with a threaded barrel and 10 shot mags. Regards, Bryce
The Applicant's evidence was that he was making purchases on behalf of his father. However, as the extract set out above demonstrates, the Applicant requested the packages be addressed to himself, not his father and the Applicant also made enquiries as to further potential future transactions relating to firearms which were concerning enquiries for an unlicenced person who was not permitted any contact with firearms.
It is the Applicant's conduct rather than any conviction that is of relevance in this review: see Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30] citing Bazouni & Ors v Commissioner of Police, NSW Police Service [2002] NSWADT 100. The Tribunal is satisfied the Applicant's conduct in relation to the online purchasing further demonstrates the Applicant's disregard for the requirements of the firearms licensing system in addition to his conduct in 2011.

Letters of reference

The Applicant provided letters of reference from his father, several friends of longstanding, and a work colleague. The Tribunal cannot be satisfied the authors of the letters, aside from the Applicant's father who lacks independence in this matter, had knowledge of the full extent and seriousness of the conduct of the Applicant in 2011. On that basis the Tribunal can only give low weight to the letters of reference in this review.

Traffic record

The Applicant received a warning letter as he was approaching the maximum limit for demerit points in 2013 as a result of four traffic and driving offences committed between 2010-2013. Since that time the Applicant has committed five minor speeding offences: one in 2015, one in 2020 and three in 2021. The Applicant's traffic record is of low weight in this review because the Applicant's traffic record has improved over time and more recent offences are minor.

Psychologist's report

Dr Roger Blake, a forensic psychologist, provided an assessment report for the Applicant following a two hour examination by zoom including performance of a test as well as a subsequent conversation with a family friend. The report provides opinion as to the Applicant's extent of remorse and risk of reoffending, finding no psychological basis for the Applicant's past offending.
Dr Blake's report also provided opinion as to the Applicant and his father's conduct in relation to the online purchasing. Under cross examination Dr Blake agreed his opinion as to those matters was outside his expertise.
Under cross examination Dr Blake could not specify the material he had before him when preparing his report. Dr Blake also recalled his instructions coming from the Applicant's legal representative when the submission of the Applicant was that the instructions came directly from the Applicant. On that basis Dr Blake's report can be given little weight in this review because the Tribunal is unable to be certain of the basis on which Dr Blake provides his opinions: see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 at [44]-[51].
Further, the Tribunal accepts the submission of the Applicant on the issue of the Applicant's remorse that the report of Dr Blake cannot be relied on because it failed to satisfy the three fundamental requirements of expert evidence, namely: it must identify an accepted field of expertise held that can be applied to the facts; it must identify a factual basis for the opinion in the admissible evidence; and it must expose how the expertise is the substantial basis connecting the factual basis to the opinion: see Lang v The Queen [2023] HCA 29 (at [223]) citing with approval Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. The issue of remorse was not identified in the report as a field of expertise of Dr Blake and there was no identification of the factual basis on which the purported opinion was proffered. The result of this and the finding at [27] above, is that only the Tribunal can determine the extent of the Applicant's remorse, if any, in this review.

Remorse

The observation of the Tribunal is that the Applicant did not come to the Tribunal fully and openly acknowledging the nature and seriousness of his prior conduct. The Applicant expressed remorse for the trouble and inconvenience he had suffered through protracted court proceedings, however he did not express remorse for the potential consequences of his conduct in 2011 and its potential impact on public safety beyond admitting to mistakes that the Applicant's representative characterised as "silly mistakes".
The Tribunal therefore cannot be satisfied the Applicant has demonstrated acknowledgement and understanding of his conduct in 2011, including the potential impact of his conduct on public safety, to be considered to be remorseful for that conduct.

Firearms safety course

The Applicant provided a certificate of completion for a firearms safety course dated 23 January 2024 under a cover letter that stated: COURSE IN FIREARMS LEGISLATION IN NSW The Firearm Safety and Training Council Ltd is a Registered Training Organisation that is approved by the NSW Firearms Registry for the delivery of the Firearms Pre-licence Qualification course: a mandatory course for all NSW firearms licence holders. The attached certificate certifies that you have successfully completed a course in firearms legislation relating to NSW which is designed to improve the general knowledge of the firearms laws in this State and covers a firearm licence holders responsibility as to matters including safe storage, transportation, use/carriage/possession of firearms. The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence.
No further information as to the content of the course was before the Tribunal.

Nature of conduct and knowledge of requirements

The Applicant attributed his conduct in 2011 to the trust he had placed in hearsay he had relied on in applying his technical approach to, and understanding of, firearms definitions and requirements under the Firearms Act.
The Applicant's conduct in 2011 included possession of firearm parts and ammunition (see p 616 of exhibit R1) that could cause a handgun to be used as a semi automatic weapon.
The Supreme Court found that the Applicant had in his possession a firearm, essentially determining that missing one piece of the AK-47 did not diminish that the Applicant possessed a firearm, which was a prohibited weapon. The Tribunal is satisfied the Applicant's conduct in 2011 included the manufacture of firearms because he was assembling kits with the potential to make multiple prohibited firearms, within the meaning of firearm found by the Supreme Court, with the intention of selling the kits. This characterisation of manufacturing was denied by the Applicant in closing submissions.
Under cross examination the Applicant was reluctant to agree to the scope of the modified weapon offence. On the material before the Tribunal, the evidence demonstrates the Applicant was in possession of a firearm that had been modified because it was shortened. The Tribunal accepts the evidence of the Respondent's firearms expert, whose expertise is set out at p 566 of exhibit R1, that the relevant firearm was a prohibited weapon (see p 571 of exhibit R1) and that it was a registered pistol which was converted into the modified prohibited weapon (see pp 526 and 571 of exhibit R1).
The Tribunal therefore accepts the submission of the Respondent that the Applicant's evidence demonstrates the Applicant's continued lack of knowledge of the restrictions on firearms licence holders as well as his ambivalence to, if not intentional disregard for, the strict requirements of the Firearms Act.

Public safety and risk

Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].
In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]): …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 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.
In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety": see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

Is it in the public interest for the Applicant to hold a licence?

The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for 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.
The Applicant's conduct leading to the 2011 offences posed considerable risk to public safety. Firearms parts and ammunition in very large quantities and a prohibited weapon (crossbow) were left unsecured around the Applicant's house including in open bedroom cupboards and under the Applicant's bed. The offences were serious, were not mere technical breaches and are only mitigated by the fact no one was hurt and no items were stolen as a result of the Applicant's conduct.
The Tribunal is satisfied the Applicant's conduct during 2011 was of such seriousness in its disregard for public safety that it is not in the public interest for the Applicant to hold a firearms licence. The passage of time since the conduct does not overcome its seriousness in this review.
On the material before the Tribunal, the only step the Applicant has taken by way of formal education on firearms safety since his 2011 conduct is taking a course in January 2024 following the refusal of his licence application. The timing of the course does not weigh in favour of the Applicant demonstrating a strong commitment to address his past conduct and previous lack of understanding of the requirements of the firearms legislation.
Additionally the Applicant's oral evidence does not demonstrate the course was effective in improving the Applicant's understanding of firearms legislation. If the course had properly informed the Applicant of the requirements of the firearms legislation, the Tribunal would have expected different evidence from the Applicant where he should have readily accepted and understood the Respondent's characterisation of the Applicant's conduct in 2011, particularly in relation to the modified firearm and the issue of semi automatic firearm manufacture.
The Applicant's evidence at the hearing did not demonstrate the Applicant in 2024 understands the extent of unlawfulness of his conduct in 2011 such that the Tribunal cannot not be satisfied the Applicant has sufficient understanding and knowledge to comply with firearms legislation if granted a licence.
Further, since the Applicant's licence was revoked his conduct has not been without concern as demonstrated by the nature of the interaction with the dealer as set out at [21]-[22].
Therefore, a risk to public safety continues to exist should the Applicant be granted a licence because the Tribunal cannot be satisfied the Applicant would comply with the strict requirements of the Firearms Act on the basis of his previous conduct and the Applicant's lack of understanding of those requirements demonstrated at the hearing.
In all the circumstances, on the material before the Tribunal, it is therefore not in the public interest under s 11(7) of the Firearms Act for the Applicant to hold a firearms licence.
It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence.

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: 30 August 2024

At a glance

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Judgment (17 paragraphs)

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Cases Cited (10)