Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Commissioner of Police v EMB [2021] NSWCATAP 63
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Commissioner of Police v EMB [2021] NSWCATAP 63Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Romanos v Commissioner of Police [2019] NSWCATAD 272Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184Sterjovski v Director-General, Department of Transport [2002] NSWADT 10Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (9 paragraphs)
[1]
reasons for decision
The applicant Mr Ian Morris applied to this tribunal on 19 June 2020 for review of a decision by the respondent Commissioner dated 25 May 2020 refusing his application for a category AB firearms licence. The application was initially refused on 14 August 2019 and that decision was affirmed following an internal review on 25 May 2020.
Now aged 69, Mr Morris had been issued with a shooter licence on 12 November 1993. Because of legislative changes, that licence was cancelled on 14 December 1998. The applicant was subsequently issued with a category AB firearms licence for the purpose of sport and target shooting on 11 December 1998, that licence being renewed on 10 December 2003.
On 20 October 2004, the applicant became subject to an interim apprehended violence order (IAVO) as a result of a continuing dispute with his neighbour, Mrs M****. As a result of that IAVO, his firearms licence was suspended. On 4 November 2004, police received a complaint that the applicant had breached the IAVO by confronting Mrs M in her backyard and using abusive and threatening language. That same day the police arrested the applicant and informed him that he would be taken to Casino police station. The applicant then asked for the opportunity to obtain some personal belongings from his house before being transported to the station.
When police entered the house they found a semi-automatic rifle on a bed. After questioning, the applicant produced a slide-action shotgun that was kept in the roof space of the house, together with several boxes of ammunition. During a later interview, the applicant admitted that he planned to use the rifle to shoot himself and that he had previously held a gun to his head when experiencing suicidal ideation. He also contended that he felt it was his right to possess the prohibited firearms, as he had purchased them legally under previous legislation and did not believe the government should restrict access to firearms of that type.
As a result of that incident, the applicant was charged with eight offences, and on 12 August 2005 was convicted of the following six contraventions and sentenced to 200 hours of community service:
possessing ammunition without holding a licence or permit (two counts);
not keeping a firearm safely, being a prohibited firearm (two counts); and
possessing an unauthorized prohibited firearm (two counts).
Because of those convictions, his firearms licence was revoked on 22 April 2006. On 9 March 2006, he had become subject to a full AVO as a result of the ongoing disputes with Mrs M, the AVOs expiring on 9 September 2007. Mrs M again contacted police in April 2007 alleging that the applicant had shouted abuse at her, placing him potentially in breach of his AVO. She refused, however, to provide a formal statement in relation to the incident and no further action was taken.
In September 2009, Mrs M again contacted police, alleging that the applicant had been watching her through a telephoto lens or similar device, but again declined to apply for an AVO. On 24 January 2017, following a further exchange of allegations with Mrs M, he attended Casino police station to discuss the problems he was having with her. He said he believed she was spreading rumours about him in their town and that her constant presence was causing him anxiety and affecting his health. The police advised him about reporting offences and gave him a personal AVO application form and a mental health access line card. Shortly afterwards, he complained to Casino police after hearing cat noises outside his house, believing that Mrs M was making the noises to upset him.
On 2 November 2018 the applicant applied for a category AB firearms licence for the reasons of sport/target shooting and recreational hunting/vermin control. He attached as 37-page hand-written "personal narrative" (exhibit R1, pp 67 - 103) which is referred to below. In reply to a firearms registry request for further information, he stated in a letter received on 7 December 2018 (exhibit R1, p 106) inter alia that "I have never intimidated, threatened violence or ever used any firearms I have ever owned against anyone. I am not predisposed to being violent or carrying out violent crimes or deviate practices…. If I was going to be violent to anyone at all it would have been about 15 years ago back around 2004/2005 when the lies about me were perpetrated…."
On 14 August 2019, the applicant's licence application was refused on the grounds of public interest by reason of concerns about his views on the current legislation (as expressed in the lengthy letter dated 2 November 2018). He requested an internal review, arguing that the convictions and the reports of his differences with Mrs M were irrelevant because of their age, that he disagreed with Firearms Registry decisions and that his views were his "right to think and to say without prejudice". The refusal decision was affirmed on 25 May 2020, and the applicant applied to this tribunal for administrative review on 19 June 2020.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a licence must not be issued unless 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.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if it is considered that the issue of a licence would be contrary to the public interest.
The issue in this application is thus whether the applicant is a fit and proper person to hold a firearms licence and whether it would be contrary to the public interest for him to do so.
[3]
The evidence
The respondent did not adduce oral evidence but relied on documentary material, including the s 58 documents (exhibit R1).
The applicant gave oral evidence via an AVL link. He had not filed a witness statement, although Pearson PM had on 18 August 2020 directed him to file and serve "evidence including statements, documents and submissions on or before 13 October 2020".
In his testimony by way of the evidence in chief, he conceded the correctness of the list of factors in exhibit R3, para 40, which the respondent said were relevant to whether he is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, namely,
he had been the subject of an IAVO, which he had breached, and an AVO;
he was convicted of a number of offences under the Firearms Act;
he made comments to police that he intended to use his firearms to take his own life; and
he had failed to demonstrate any acknowledgement or contrition for his firearms offences.
In relation to the convictions, he countered that Black DCJ in allowing his appeal had disregarded the IAVO and AVO because the informant (Mrs M) had lied. His appeal had been upheld. As regards the convictions under the Firearms Act he said that they were 12 or 13 years ago and his comment about taking his own life was a philosophical statement that was now irrelevant. Everyone owns their own life and what they do with it is nobody else's business. He also disputed that he had displayed no contrition in relation to the offences. In the letter accompanying his licence application, he had written, "Like I said at the start; I was morally right and legally wrong, and [prime minister] Howard is/was a liar" (exhibit R1, p 97).
He had never threatened Mrs M, it was just an allegation by her, supported by her boyfriend, Mr G****(which may not be his real initial). Until 2004, or for the first two years he had been living at the property, he got on satisfactorily with her. Then from 2004 onwards she lied to the police and to the court, and she was herself subject to an AVO, as Black DCJ bore out in his judgment. Rappville is a small, "incestuous" town, having at the time some 110 inhabitants, which is now down to about 90 because of the bushfires. Mrs M had taken out two or three AVOs on other people before he had even moved to the town in 2002. She took out 10 or 12 AVOs, including one for her son. He himself had never been accused of violence or threats. There was no basis for any reference to mental health concerns and he did not have a fluctuating personality.
[4]
Applicant's submissions
The applicant relied on a 54-page bundle of mostly handwritten material (exhibit A5) which in part reproduced his documents filed on 24 May 2021. His oral submissions occupied more than half of the first hearing day and most of the second and took the form of a detailed oral critique of the respondent's written submissions (exhibit R3) and the s 58 documents, virtually line by line, including the following.
As regards the IAVO, he said he was not involved in an ongoing dispute with Mrs M, but she had lied. He had never done anything to her and Black DCJ had rejected her evidence about his alleged use of abusive or threatening language and her claim that he had one night loosened the wheel nuts on her motor vehicle. He had not believed any of her evidence.
The respondent's claim that he had "admitted he planned to use the rifle to shoot himself" (exhibit R3, p 3) was incorrect. It was simply a statement of fact, not an admission, as he had planned to shoot himself, but had never had that intention on any other occasion. He had thought, as he did now, that the correct legislative approach would have been to issue licenses, but it was just an opinion and he had altered his view now that Howard was out. His comment was intended as a protest about Prime Minister Howard's then new rules.
He had been the subject of a full AVO (id., p 4), but Mrs M had also had an AVO against her. He had not screamed anything about "get you outta here". She and Mr G had been sitting on the veranda drinking beers. As there had been other witnesses, she did not give a statement to police. He had not observed her through a telescope or other device, and he did not recall anything like the incident about the rabbit that was referred to in the COPS report (exhibit R1, p 20). The dog walking episode related to another woman, whom he had not seen because the sun was setting in the west, in his eyes. She had not been on the footpath and an AVO had not been applied for.
He had never had any intention of doing harm and was no danger to the public now as regards suicide. He was entitled to his opinions about legislation. He had not engaged in hate speech or anything of that nature, but was just expounding his philosophy. Everyone owns their own life and it was not for "tinpot bureaucrats" to tell him otherwise. It had been a logical decision at the time as no-one wanted to listen to his truth.
[5]
Respondent's submissions
The respondent lodged written submissions (exhibit R3) which, after setting out the background and history of the matter, submitted that that the conduct of the applicant relevant to the tribunal's consideration of whether he is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace was:
1. he had been the subject of an IAVO which he had breached, and an AVO;
2. he was convicted of a number of offences under the Act;
3. he had made comments to police that he intended to use the firearms to take his own life, and
4. he had failed to demonstrate any acknowledgement or contrition for his firearms offences.
Evidence going against an applicant's fitness and propriety to hold a firearms licence must be weighed by the tribunal against any evidence of the applicant's good character. The applicant relied on two character references. Although they indicated that the applicant is a "non-violent" and "stable man", neither is addressed to the registry, demonstrates why it is being provided nor any knowledge of the applicant's criminal history. In those circumstances the tribunal would not 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.
As regards the public interest and s 11(7) of the Act, it was well established that, in considering the meaning of that term, the tribunal would have regard to the context in which it appears in the first instance. In this case the relevant contextual matters included the underlying principles and objects of the Act, the strict controls established by the Act, that the licensing scheme is emphatically concerned with protecting the public and making decisions that are consistent with the need to reduce any risks to a minimum, and public safety is to be given paramount consideration.
The standard of public safety required consideration 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, [64] - [66]).
Applying that understanding of the law, the respondent submitted that there are three main areas of objection to the applicant being issued with a licence. First, he was convicted in 2005 of offences relating to the possession of prohibited firearms, one of which was located loaded and unsecured in a bedroom. The offences included possessing an unauthorized prohibited firearm (two counts), not keeping a firearm safely - prohibited firearm (two counts) and possessing ammunition without holding a licence, permit or authority (two counts).
[6]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[7]
Fit and proper person
The first ground on which the respondent contends that the licence refusal should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Under s 11(3)(a) of the Act, a licence must not be issued unless "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".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
The applicant submitted that Hughes and Vale should be disregarded because it had nothing to do with firearms and was going off at a tangent. The case is relevant, however, because of the principles that it establishes.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[8]
The public interest
The other issue to be resolved in this application is whether it would be contrary to the public interest for the applicant to hold a firearms licence within the meaning of s 24(2)(d) of the Firearms Act and cl 20 of the Firearms Regulation.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[9]
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: 02 June 2021
He probably had said that he had intended to take his own life, but that was the first time he had ever thought of suicide. The police had not been interested in what was happening to him, as Mrs M is from a police family, so he got depressed. All he has are a few traffic violations, but a picture has been painted of him as a criminal, though admittedly he did break the law in relation to his semi-automatic centre-fire rifle and slide-action shotgun. He had never threatened anyone and was stable and law-abiding. He had purchased his firearms legally.
His licence had not been suspended because of mental health concerns, but because of the AVO and his convictions on the firearms charges (exhibit R1, pp 53 - 56). [At this point the respondent indicated that he was no longer relying on the mental health ground.] He disputed the allegation that he had "expressed views regarding firearms regulations and his prior offences that raise concerns regarding his ability to comply with the strict requirements of firearms regulations" (exhibit R3, p 2).
In 2004 he had owned a .308 (7.62 mm) and a 5.56 mm Ruger for pig hunting, as well as a lever action rifle. He complied with the storage requirements in force at the time. The .308 and the 5.56 had bolt actions and he had stored the bolts separately from the rifles, although not required to do so by the regulations at the time. He thought it was stupid to store the two together. His .22 had a tubular magazine, and he stored the magazine stop tube in a special compartment that he had made. He had really gone overboard with his storage precautions.
He also stored his ammunition separately from the rifles, either under the stove (which did not work) or in a special compartment in his van. Those arrangements could comply with the regulations. He had stored his category C firearm dismantled in the roof of his house, which was difficult to access because the manhole was hard to find, the ceilings were 9 feet rather than 8 feet as is usual and there were no ladders kept in the house. Nobody knew about his firearms, and secrecy is a big protective factor.
In cross-examination he said Mrs M was still a neighbour. He agreed that he had told the police that she caused him anxiety and affected his health, but that was only part of it, as the police only took on what they wanted to. In January-March 2017 he reported some instances, but they had said he was rambling and gave him a psychology help card. Her activities had been affecting his sleep, not really his health. He agreed that he was not jovial, because he was nervous and anxious and not in his normal state. Further, the police were not qualified to make judgments about his mental health, as they had in their COPS report.
When it was pointed out to him that in his 37-page letter accompanying his licence application (exhibit R1, pp 67 - 103) he had said that he was depressed because of Mrs M's lies, he said it was one of the reasons. The police had taken her side, and he was depressed by that. This is now 16½ years later and he is not the same person. He is no longer depressed and had never been suicidal before or since that time. He is not a danger to the public and his neighbour is now just an irritant. There is no need for him to see a psychologist or a psychiatrist.
The applicant also relied on two character references (exhibit R1, pp 63 - 64). In a letter dated 15 October 2018, Mrs EJ Davey wrote that she has known the applicant for over 60 years and can testify that he is mentally stable, with a non-violent personality. He is also a person of honesty and integrity who cares very much about environmental issues. Mrs Davey holds a number of tertiary qualifications, including a postgraduate diploma in counselling.
Ms Diane Remilton in her letter dated 11 October 2018 wrote that she had been friends with the applicant for over 40 years. During that time she had always found him to be of sound mind and conscientious. He is a non-violent and stable man, concerned with the environment and healthy living and interested in current affairs both locally and nationally. She considered it an honour and a pleasure to support his endeavours by writing this character reference for him.
The suicidal ideation was 16 years ago, and he had paid the penalty for his breaches of the Firearms Act. There was nothing wrong with his mental health. He had not been a danger to public safety 16 years ago, so why would he be now? It would not be contrary to the public interest to issue him with a licence and he was a fit and proper person to hold one. He would use his firearms in order to hunt destructive feral vermin.
As regards the public interest issue, the same considerations apply as for fitness and propriety. Suicide does not affect the public interest and it was not the Firearms Registry's business. The licence application form set out no timeframe for any instances of self-harm and the record went on and on in a discriminatory manner even though there was no crime against society.
His licence revocation 13 or 14 years ago had no application today. The Firearms Registry was trying to manufacture reasons to refuse him a licence. He had never used firearms in a manner dangerous to the public and satisfied the "virtually no risk" criterion. He had suffered a glitch in his life 16½ years ago, but had since proved that the episode was no longer relevant. To seek a psychological assessment would cost him about $2000 and would be an admission that he needed an assessment, which was not correct.
He was entitled to his opinion about the Firearms Act and had never said that he disagreed with the whole Act.
At that point the hearing was adjourned part heard to a date to be fixed in May. The hearing resumed on 26 May 2021, again by AVL. During the morning session the connexion was poor and perhaps a quarter or up to a third of the applicant's remarks were not received. Those lacunae were, however, offset by the fact that Mr Morris commonly repeated his submissions multiple times.
The applicant criticized the s 58 documents as the police reports contain redactions. It appeared that there was often a time lag between the events described and the preparation of the report, which meant that there could be memory lapses causing the reports not to be correct. He pointed out that Mrs M's complaint reported on page 14 stated that she had complained, but refused to make a statement. She did this in order to obtain an E number, as the more numbers she had that showed up in the COPS database, the stronger her case would appear to be. But there was no foundation for her allegations, and she was merely playing games. She made no statement to police because she knew there are other witnesses and knew that she would be shown to be a liar.
The claim that he had looked as Mrs M through a telescope or telephoto lens was false, that would not have been a criminal act in any event. It was another attempt to obtain an E number (id., p 16). There had been a seven-day delay in preparation of the police report about the finding of a skinned rabbit, which might therefore had been inaccurate, and no photographs were ever produced. The police comments about his attitude were irrelevant and he was fed up with dealing with the police (id., p 20). The report about a damaged fence gave the wrong address, saying the premises were a few houses down from his house, when actually they were next door. In other places the address was also wrong. That raised the question of what else was wrong. (id., pp 22, 23, 26). It was also untrue to say that he was "overly concerned" about such incidents, but this had gone on for years, and the police had done nothing. Mrs M's issuance of AVOs had started two years before he came to the area.
Constable Vaughan's comment that he was "paranoid" to think that Mrs M would be making cat noises outside his house, but a "police plod" was not qualified to make such assessments are about a certifiable condition. The officer's aspersions and offensive comments showed that the reports were not impartial. There had also been reciprocal AVOs between him and Mrs M.
His guns had actually been safely stored because nobody else knew about them and they were out of sight. His category AB firearms were correctly stored, and indeed his arrangements went beyond those required at the time as the bolts and magazine spring rod were stored separately.
He had been planning to commit suicide, and was putting everything away except for one rifle for which he was going to keep one round. The police had walked in only 15 minutes from when he intended to act. He was not, however, depressed any more and all that was finished and 16 years ago. The firearms registry keeps digging stuff up and "police plods" want to make it relevant. He had never harmed Mrs M or Mr G, he just wanted to commit suicide. The firearms "registry plods" do not want to acknowledge that and seek to scuttle him with the idea that he is not in control of his actions. He is sane and in control of his emotions, and is therefore a fit and proper person and it would not be contrary to the public interest for him to have a licence. There was no issue about his AB firearms, and that is all he is applying for now. He has no need for a C class rifle.
Referring to a passage in the fact sheet that reads "The accused believes that it is responsible for the complaints and this may have caused the accused to breach his order", should have read "may have allegedly caused" (id, p 36). In relation to paragraph in the fact sheet that read "Located in the kitchen area on top of the footage were two packets of Winchester bullets totalling 91 bullets", he said that the kind of bullets was not stated (id., p 37). There should not have been bullets still on the refrigerator, because he would have secured the site before committing suicide. The report was therefore not quite honest.
He had complained to the firearms registry that the envelope enclosing a letter to him was not properly sealed, as the sealed area was only 25 mm wide, which he thought was slack and careless. He had spoken to a supervisor named Moira, who was "a trained, talking parrot" who repeated the registry's policy to him. He therefore "hung-up the phone quite loudly, hopefully annoying her as much as her bird-brained, witless attitude was annoying me" (id., p 50). Moira was "a pathetic little grunge", he wrote. In oral submissions he said that Moira was not interested and was repetitive, so he hung up. The registry thereupon went into "defensive mode", which was a trick to take action over a matter that could be resolved over the telephone.
Referring to the notice of refusal dated 14 August 2019 (id., pp 118 - 119), he said it told a lie and the respondent had built this case on the claim that he had said the firearms legislation was "unnecessary and restrictive", but his letter filed on 2 November 2018 (id., p 67) did not say that - it said "unnecessarily restrictive". He knew that gun laws were necessary, but the firearms registry was trying to twist the idea. They had taken 10 or 11 quotes out of his 37-page letter, but got only this one wrong. It could not have been a mistake, because all the other quotes were correct. "These people are liars and should be looked at that way".
He had not done anything 16 years ago when he was under real stress and had the means of doing something, but "these people" would find some other reason. He agreed that the point about "unnecessary" had been corrected in the internal review reasons (id., p 135), but they had "tried it on" until he found out. There had been no apology, so their original intention must have been to deceive. If they are trying it on with him, they must be trying it on other people as well. They are doing it in order to paint a different picture of him from that which he is.
His current mental condition was nothing like that which the respondent said his condition was in 2004. Suicide was not a crime and he had not made an actual attempt. There had been no contraventions in relation to his AB firearms, which he had sold. The internal review statement of reasons referred to the two prohibited firearms that were found, stating that, "One of these firearms was found to be loaded…." (id., p 135). But a firearm was not loaded if there were rounds in the magazine but none in the chamber. He had planned to remove all but one of the rounds, but had not expected the police to arrive and interrupt the process. He had not been found to have breached an AVO. The review referred to disputes (id., p 136), but that did not mean it was true. What had the police done about Mrs M? Nothing.
He had deserved to be convicted of the offences, but to keep it going 16 years later was beyond the pale. There is a time limit for disqualification in relation to other crimes, but not for self-harm.
The applicant had made a number of concerning statements in relation to his possession and subsequent seizure of his firearms, noting that they were legally purchased prior to the introduction of current firearms legislation, including "I kept my then illegal guns because I did not believe John Howard and I did not believe that the Port Arthur massacre happened the way we were told. I did what I have believed in…."
Also, "The term privilege in this case is from a term used by the liar John Howard…. It is an opinion only". The applicant is entitled to express his political opinions, the respondent said. But legislation imposed in respect of firearms had to be adhered to as with any other laws imposed, and the applicant deliberately disobeyed those laws for a considerable period of time. Further, the offences were particularly serious and despite the effluxion of time, the applicant had demonstrated through his correspondence that he did not accept responsibility or acknowledge the seriousness of those offences.
An underlying principle of the Act is to facilitate a national approach to the control of firearms, which the applicant explicitly does not agree with. When combined with his prior conduct, there are significant concerns that the applicant will not comply with the strict requirements of firearms legislation, which raises a risk to both the applicant and the public safety.
Secondly, the applicant had previously been the subject of both an IAVO and an AVO and continues to have ongoing issues with his neighbours, with the most recent report made to police in February 2019. In response to those matters, the applicant had stated that the "litany of garbage" was "a grey area for me to positively recall" and the "individual who had taken out the [AVO] is a recidivist, habitual liar". He had also claimed that the events leading to the AVO "never happened" and he was the subject of a "conspiracy to lie". Further, he had asserted that "I didn't act against the liars even though I was in a prime position to make them very sorry indeed for what they did to me. That's not a threat. This is just a statement of a possibility of the blatantly obvious which would not and did not happen". The respondent contended that there are significant concerns if the applicant were to possess firearms, in light of his past conduct and continuing disputes with his neighbours.
Thirdly, the submissions stated, there were a number of concerns raised in relation to his mental health. At the hearing, however, the respondent withdrew that line of argument.
The tribunal was required to look at the applicant's conduct as a whole. His prior convictions for firearms offences and refusal to take responsibility or acknowledge his wrongdoing, his prior and ongoing disputes with neighbours and prior threats of self-harm could not result in a conclusion that there was virtually no risk.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In Commissioner of Police v EMB [2021] NSWCATAP 63, [45] - [46], the Appeal Panel when discussing the concept of fitness and propriety in the firearms context stressed that s 11(3)(a) required a positive state of satisfaction that the applicant was a fit and proper person, and it was not enough for the decision-maker to find that he or she was not persuaded that he was not fit and proper. That would be inverting the test. In the absence of such a positive state of satisfaction, a licence could not be issued.
The respondent submitted that the applicant was not a fit and proper person to hold a firearms licence on three main grounds. The first was that on 12 August 2005 at Lismore Local Court he had been convicted on six counts of firearms offences, two of possessing an unauthorized prohibited firearm, two of failure to keep a firearm safely and two of possessing ammunition without holding a licence, permit or authority. He had been in possession of a Ruger semi-automatic rifle and 12-gauge slide action shotgun. He was convicted and sentenced to a community service order of 200 hours. Those were prescribed offences under the Firearms Act which disqualified him from holding a licence for a period of 10 years (s 11(5)(a)).
He told police that he had been planning to use the Ruger rifle to shoot himself and that he had previously held a gun to his head when experiencing suicidal thoughts (exhibit R1, p 38). At the hearing he said that when police arrived he had been tidying his affairs and was securing his firearms, being only 15 minutes away from shooting himself. He said that he had both the unauthorized firearms for self-defence and would use both of them if required. He said he had owned both of them for over 10 years and was fully aware of the number of amnesties, when he could have surrendered the firearms. He further stated that when he used his motor vehicle, he carried the Ruger semi-automatic "most of the time", and when at home he stored it either on the bed or in an unlocked gun cabinet (exhibit R1, p 34).
He criticized the statement in the internal review reasons that one of the prohibited weapons was "loaded", when there were 5 rounds in the magazine but none in the chamber. The rifle was not loaded, he said, unless a round had been chambered. That, however, is not technically correct, as a firearm with a round in the chamber is described as being "in battery", whereas a repeater with live rounds of the magazine is usually described as being loaded (Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [65]).
He later pointed out that his firearms had been legally purchased at the time before the introduction of the current legislation. He wrote that "I kept my then illegal guns because I did not believe John Howard and I did not believe that the Port Arthur massacre happened in the way we were told" (exhibit R1, p 73). In his letter to the firearms registry of 2 November 2018, he spent some 24 of the 37 pages discussing what he saw as the errors and omissions in the official narrative of those events (exhibit R1, pp 67 - 100). He considered that the respondent had misrepresented his position in the notice of refusal dated 14 August 2019 (exhibit R1, p118) by attributing to him the belief that firearms legislation was "unnecessary and restrictive". In fact he had written "unnecessarily restrictive", as he knew that firearms licensing was necessary. Although the error had been corrected in the internal review decision, there had been no apology and their original intention must have been to deceive. "These people are liars", he said at the hearing.
He also found fault with a police report which he said should have included the word "allegedly" (exhibit R1, p 36), but the sentence in question was clearly an allegation in itself and the addition of "allegedly" would have been tautologous. He suggested that minor errors in addresses and other details indicated a more widespread unreliability in the police reports. He criticized an event report's describing him as "paranoid", arguing that a "police plod" is not qualified to make such a diagnosis. It is obvious, however, that the officer writing the report was using the word in its commonly-accepted colloquial sense. The applicant also objected to the statement that he had admitted that he had been planning to commit suicide, arguing that it was not an admission but a simple statement of fact. That would not prevent it from being an admission, however.
Of the concept of firearms ownership being a privilege rather than a right, he wrote "The term privilege in this case is from a term used by the liar John Howard…it is an opinion only" (exhibit R1, p 13 all 2). He said at the hearing that he had deserved to be convicted, "but to keep it going 16 years later is beyond the pale". He pointed out that he had done nothing 16 years ago (in the sense of threatening or other misuse of firearms against any person) when he had been under real stress and had the means, so there was no reason why he would do anything now.
The respondent submitted that while the applicant is entitled to express his political opinions, legislation imposed in respect of firearms must be adhered to as with any other laws imposed, and the applicant deliberately disobeyed those laws for a considerable period of time, committing particularly serious offences. The applicant had demonstrated through his correspondence that he does not accept responsibility or acknowledge the seriousness of those offences. When combined with his prior conduct, his attitude raised significant concerns that he would not comply with the strict requirements of firearms legislation.
The applicant is a man aged 70 who has no record of violence, and other than the 2004 offences, for which the 10-year disqualification period has expired, he has no other criminal history (a phrase to which he also takes exception). From his written expression and other indications, he appears to be a man of above average intelligence. When he possessed category AB firearms, he passed safe storage inspections in relation to them and had no breaches or violations recorded against him. His current application is for a category AB licence only.
While he still appears to be of the view that the 1996 legislation is unnecessarily restrictive (and may not be the only licensee holding that view) and believes it was introduced under false pretences, he says he takes a more accepting view of the licensing scheme now that "Howard is out of government". Although he displays little in the way of overt contrition, he has clearly acknowledged that he was legally wrong and said at the hearing that he deserved to be convicted.
He makes much of inconsequential infelicities in Firearms Registry correspondence and expresses uncalled-for disdain in relation to registry staff, but there is little evidence to give rise to doubt that if he were reissued with a category AB licence he would comply with all the obligations attending it. In my view this ground alone would not prevent the tribunal from finding that he is a fit and proper person to hold a licence.
The second ground on which the respondent relies is that the applicant has previously been the subject of both an IAVO and an AVO, and continues to have "ongoing issues" with his neighbours, with the most recent report to police dating from February 2019. That event was of little significance and the last report of note was E 50894568 (3 March 2017, exhibit R1, p 28), which was a complaint made by the applicant, who told Casino police that he heard cat noises outside his window at 3 a.m., although there were no cats nearby. He believed his neighbour was doing things to upset him, adding that two of his orange trees had died quickly and he believed the neighbour had sprayed them with poison. Police had doubts in relation to the report and said he appeared "paranoid".
The mutual complaints date back to at least 13 April 2007, when Mrs M stated that the applicant began to yell at her vehicle as she and Mr G drove past, "calling names and saying 'we need to get you outta here'" (exhibit R1, p 14). No action was taken as Mrs M declined to make a statement to police.
The applicant gave evidence to the effect that Mrs M had issued numerous AVOs against other Rappville residents, a pattern that had begun two years before he moved to the area. That evidence was not challenged. The applicant became subject to an interim apprehended violence order (IAVO) on 20 October 2004 as a result of the continuing friction between the neighbours. It was in response to information that he had breached the AVO that police on 4 November 2004 attended his residence, where they found the two prohibited firearms.
On 9 March 2006, the applicant became subject to a full apprehended violence order that expired on 9 September 2017. The applicant maintained that the "litany of garbage" was a "grey area for me to positively recall", and that the "individual who had taken the [AVO] is a recidivist, habitual liar" (exhibit R1 p 91) he added that the events leading to the AVO "never happened" and that he was the subject of a "conspiracy to lie" (ibid.). Further, he stated that, "I didn't act against the liars though I was in a prime position to make them very sorry indeed for what they did to me. That's not a threat. This is just a statement of a possibility of a blatantly obvious which would not and did not happen" (id., p 93).
The applicant was subsequently convicted of two breaches of the IAVO, but the convictions were quashed on appeal by Black DCJ on 8 September 2006. His Honour said "I could not begin to pay any attention to identification evidence particularly from [Mrs M] and I feel when one has that and then looks at [Mr G]… I find it quite impossible on all the evidence here to conclude that I would be satisfied beyond reasonable doubt…." (exhibit A3, p 5). His Honour also thought that the acts alleged would not constitute a breach of the IAVO even if they were established.
On the basis of that history of disputes extending over more than a decade, the respondent contends that there are significant concerns if the applicant were to possess firearms, in light of his past conduct and continuing disputes with his neighbours.
The applicant describes the history of altercations as a "litany of garbage" uttered by an "habitual liar", but qualifies that by conceding that he cannot "positively recall" the specifics of the narrative. Given Black DCJ's finding about the credibility of Mrs M and Mr G, the applicant's account gains credibility at the expense of the neighbours' version. Nevertheless, the applicant's propensity to indulge in outbursts of vituperation against his neighbours and others with whom he has dealings (of which more below), the applicant must bear at least some of the responsibility for the stressful relations between the two parties. As he points out, however, 16 years ago he did nothing against his neighbours although he was under greater stress and had "the means" of taking action. Nor had there been any acts of violence or any threats of violence in the intervening years. In my view the record of disputes between the applicant and Mrs M and Mr G would not prove an insuperable obstacle to finding that he is a fit and proper person.
The third matter relating to fitness and propriety is the applicant's admitted previous threats of, and preparation for, suicide. The applicant has expressed the view that "My thoughts about suicide are my thoughts to think and to say without prejudice from the likes of you" (exhibit R2, p 132), and "the act of suicide or attempted suicide… Is between the citizen and God" (id., p 94). He argues that "God gave us this life…that's GAVE. It is therefore given that this is each individual's choice as to what each individual does with his/her life and if the circumstances become unbearable because the laws allow liars to sabotage another… then it is… the individual's choice whether to continue or terminate" (ibid.).
At the hearing he made it clear that he remains of the view that suicide is an individual matter and has nothing to do with the state, and also nothing to do with the public interest. He considers that his near-suicide was a logical step at the time because he was depressed as a result of the failure of the police to take any action on his complaints about Mrs M. But he is not depressed now and he is mentally stable.
The respondent does not submit that the applicant is "of unsound mind" within the meaning of s 11(4)(c), or that his mental health is an issue as such. But episodes of attempted self-harm are a matter of concern for decision-makers because of the mandatory licence refusal applicable where the Commissioner has reason to believe that an applicant may not personally exercise continuous and responsible control over firearms because of "any previous attempt by the applicant to commit suicide or cause a self-inflicted injury" (s 11(4)(b). It was no doubt for that reason that the respondent's adjudication officer wrote to the applicant on 14 August 2019 suggesting that the applicant obtain "a full report from a mental health professional (i.e. a registered psychologist or psychiatrist)…." (exhibit R1, p 119). He did not do so.
The applicant objects to the idea of such an evaluation on the ground that it would constitute an admission that he had a mental health problem, whereas he is perfectly stable, in control of his emotions and no longer depressed. On his own admission, however, he was only 15 minutes away from suicide when police came to his house in connexion with a claimed IAVO breach. He also had an earlier episode of suicidal ideation when he placed a gun to his head. The Firearms Act treats attempted suicide or self-harm as highly serious matters and the tribunal must give effect to that legislative concern.
Consideration of fitness and propriety must of course consider all the evidence in an applicant's favour. In this case that includes a reference from Mrs Elaine Davey dated 15 October 2018. Mrs Davey has several tertiary qualifications, including a graduate diploma in counselling. She writes that she has known the applicant for over 60 years. "I can testify that he is mentally stable, with a non-violent personality. He is also a person of honesty and integrity who cares very much about environmental issues" (exhibit R1, p 63).
The other reference, dated 11 October 2018, is from Ms Diane Remilton, who writes that she has been friends with the applicant for over 40 years, and during that time has always found him to be of sound mind and conscientious. "He is a non-violent and stable man, concerned with the environment, healthy living, and interested in current affairs both locally and nationally. It is an honour and a pleasure to support his endeavours…." (id., p 64).
The respondent submitted that the references merited little weight as they were not addressed to the registry and did not indicate the purpose for which they were required. While that is true, they are directly relevant to the issue and should be given some weight.
On all the evidence, however, I am of the view that given the applicant's history and his continuing assertions that suicide is a rational and logical solution for life's problems, it is not possible to make a positive finding that he is at present a fit and proper person to hold a firearms licence in the absence of professional evidence that he is no longer a self-harm risk.
Other cases have pointed out that 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, [64] - [66] 66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
As the respondent argued, the primary and overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk (as understood in Webb) to public safety cannot be outweighed by the applicant's interest in holding a firearms licence.
The evidence shows that the applicant has no record of violence or of using firearms to threaten or intimidate others, or of threats of violence generally. There does not appear to be any real and appreciable risk to public safety in that regard. But, as was made clear in Kavalieratos, public safety includes the applicant's own safety. The comments above about the applicant's episodes of preparation for self-harm are relevant here.
The applicant's position is that although he was depressed at that time 16 years ago, he is no longer depressed and does not represent a suicide risk. But he does remain firmly of the view that taking one's own life is a rational and logical option for the solution of life's problems. Although he is not depressed now, the causes that can trigger depression (whether clinical or not) do not necessarily diminish with age, and should he again face problems or frustrations, there must be a risk that he will once again consider that "logical" solution. His referees describe him as mentally stable, but it does not appear whether they are aware of his past suicidal preparations. The respondent's adjudicating officer on 14 August 2019 (exhibit R1, p 119) wrote to him suggesting that he obtain a full evaluation by a psychologist or psychiatrist, but he did not do so and is still opposed to the idea. But it would in my view be imprudent for this tribunal to find that there is no real or appreciable risk of self-harm in this case without professional evidence to that effect.
The respondent also submits that it would be contrary to the public interest for the applicant to hold a licence because his expressed attitudes raise doubts as to whether he would conscientiously comply with legislative requirements. While he is fully entitled to hold and express his own opinions about the merits and demerits of firearms legislation, his traducing of firearms registry staff seems quite extraordinary. "These people are liars", he said at the hearing. In his written material he describes them as "arrogant toady bureaucrats", a "devious bunch of clerks", "petty-minded little brains" who have "twisted events", their communications are "hysterical ravings", "lies" and "hysterical pretended concerns". A registry supervisor is a "bird-brained, witless", "trained, talking parrot" and a "pathetic little grunge".
It is unusual to encounter this degree of abuse from a person wishing to be regarded as a responsible citizen who presents no risk to the peace and can be depended on conscientiously to comply with regulatory requirements. On the other hand, it is not suggested that his completed application form or his other communications are false or misleading in any material particular. As at present advised, I do not think his offensive comments constitute sufficient ground for an adverse finding on the public interest. I do, however, consider that by reason of concerns about the risk of self-harm, and the lack of psychological evidence to allay that concern, it is not at present in the public interest for the applicant to hold a firearms licence, and I so find. The decision under review must be affirmed.