It is not in dispute that the Applicant has a long history of traffic offences. Since obtaining his driver's licence in 1986, the Applicant has been issued with a significant number of penalty notices for various traffic related offences including offences for exceeding the speed limit by over 30 km/h and over 45 km/h. The record includes notices for the suspension of his driving licence issued on 6 occasions, two cancellations of his licence and one-year good behaviour bonds issued in 2009 and 2019.
Mr Zoppo submitted that the Applicant's significant and ongoing traffic related offences demonstrate disregard for traffic laws that are not only intended to protect himself, but also the general public. These instances demonstrate an unwillingness of the Applicant to comply with regulatory laws that, like the Act, are directed at ensuring public safety. The Applicant's recent behaviour is not demonstrative of an individual who has changed his ways.
[2]
False statements
As noted above, the Respondent also asserts that the Applicant had provided false information in regard to his licence re-application. On the 2017 re-application form he ticked the 'No' box in his response to the question 'Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?'. The Respondent notes that the Applicant's firearms licence was suspended in 2004 and 2006.
The Respondent also notes that the Applicant signed a declaration that the information was 'true and correct in every detail' and acknowledged that he was aware of the importance of telling the truth.
Mr Zoppo submitted that the Applicant has not been truthful in his evidence as well as on the re-application form.
The Respondent submits that in all of the circumstances, the Tribunal can be satisfied that it is not in the public interest for the Applicant to hold a firearm for the following reasons:
the Applicant has demonstrated that he has a propensity to resort to violence when faced with disputes involving his partners and those who he has worked with;
the Applicant's driving record demonstrates that he places little regard to the complying with the laws that are directed to ensuring public safety; and
the Applicant has deliberately submitted false information in the licence re-application form.
Accordingly, it is submitted that the Respondent's decision should be affirmed.
[3]
The Applicant's case
As noted, the Applicant provided an affidavit and his own evidence at the hearing. He provided a response to each of the issues raised by the Respondent.
With the exception of the 1988 conviction, the Applicant has denied each of the allegations raised against him. In regard to the 1988 incident, he stated that he did not consider it to be a serious incident. He and his sister argued over a ham bone and she alleged that he had pushed her. She reported him for assault and he was charged. He entered a guilty plea and was convicted and sentenced to a two-year good behaviour bond.
The Applicant denied the allegations regarding violent conduct towards his ex-wife and stated that he was never charged in relation to those allegations. He denied that he prevented her from leaving the house. In relation to the alleged damaged to a phone he said that the phone dropped on a tile floor and the screen cracked. He denied that he jumped on the phone or threw it. He denied that there were any other incidents with regard to his ex-wife that had not been reported. He did not agree that the information that his ex-wife gave to the police was true.
The Applicant does not dispute that he was the subject of an Interim AVO in about 2000. However he denies that he acted in breach of the terms of the AVO. He stated that he was not prevented from contacting his ex-wife in relation to their child and that his contact was in regard to the child. He agrees that he made phone calls in relation to their child but he does not recall making the phone calls that are alleged to have been in breach of the AVO.
In relation to the 2004 incident involving a co-worker the Applicant agrees that he was in charge of a vessel and that the co-worker was an engineer on the vessel. He said that an incident arose between the two of them in which the co-worker abused him over the radio. Following the incident the co-worker went to the mess room. The Applicant said that some time later he went to check on the co-worker's welfare because he was concerned about the co-worker's mental state. He said that when he opened the door to the mess room, the co-worker attacked him. He said that he pushed the co-worker away and left. He denied that he punched the co-worker.
He denied that the co-worker was injured. He said that there is video footage that shows the co-worker jumping off the vessel with no injuries.
As noted above, the Applicant's firearms licence was suspended as the result of an altercation with the tenant of a property that he was managing on behalf of his mother. The Applicant provided an explanation for the incident and noted that the suspension was lifted and his firearms were returned.
In 2019 the Applicant was charged with an assault occasioning actual bodily harm to Mr Chris Carter. It is common ground that the charges were dismissed following a hearing of the matter.
The Applicant's evidence is that he has dealt with a business operated by Chris Carter and which is now operated by Lincoln Carter. He dealt with the business over a period of about 20 years in relation to a number of boats. Over that time money was owed by the Applicant to the business and by the business to the Applicant. He said that most of his dealings with Chris Carter were in regard to money and most of his dealings with Lincoln Carter were related to the quality of work. He said that the relationship was always on good terms.
The Applicant's evidence is that on the day of the incident with Chris Carter he had been at the site from about 7:30 am but had left twice to deal with other issues. On the second occasion he returned and found Chris Carter on the ground. He thought that Chris Carter must have had a heart attack and he called 000. He denied that he had had a disagreement with Chris Carter on that day. He denied assaulting Chris Carter and said that in fact he had helped him. He cannot explain bruising to Chris Carter's face. He cannot explain why Chris Carter would have told a medical officer and police that the Applicant had assaulted him. He said that he had cooperated with police in regard to their investigation of the incident.
In 2020 there was an allegation that the Applicant had punched an employee of the Pyrmont Marina during a discussion about the Applicant not paying rent to have his vessel moored at the marina. The Applicant denies any such allegation. He denied that any money was outstanding and he denied that there was any altercation between him and the employee of the Pyrmont Marina. He cannot explain why the employee of the Pyrmont Marina would have told police that the Applicant had assaulted him.
The Applicant said that he cannot explain why the various people who have made complaints about him would have done so.
In relation to the issue of providing false information in regard to his licence re-application, the Applicant does not dispute that his firearms licence was suspended in 2004 and 2006. He stated that he must have misread the question on the re-application form and missed the reference to the suspensions. He believed that his answer was true at the time that he provided it. He also said that he thought the matters which were more than seven years old did not need to be declared. He did not agree that he had deliberately failed to indicate that his firearms licence had been suspended.
Mr Candelori submitted that the only finding against the Applicant is a spent conviction that was recorded in 1988. The Applicant was acquitted in regard to the 2004 incident involving a co-worker and the incident involving Chris Carter. He submitted that the Respondent is relying on hearsay evidence in relation to those matters and that the Tribunal cannot find guilt in regard to incidents where the Applicant was not charged.
In regard to the 2004 incident involving the Applicant's co-worker Mr Candelori submitted that the co-worker was not a witness of truth. In regard to the incident involving Chris Carter, he submitted that Chris Carter's injuries were consistent with falling down stairs and that the doctor did not ever visit the site. He submitted that the magistrate's reasoning was clear. Chris Carter could not remember what happened. He reconstructed events and concluded that the Applicant had either pushed or hit him. He gave different versions of the incident to different people. Mr Sconfienza did not see the incident. Lincoln Carter did not see the incident. Mr Candelori submitted that the case against the Applicant was circumstantial and, on the evidence, the Tribunal could not be satisfied that the Applicant had assaulted Chris Carter.
In regard to the other issues raised by the Respondent, Mr Candelori submitted that the accounts in the Respondent's records are hearsay. The Respondent has not called any witnesses.
In regard to the Applicant's traffic record he submitted that there have been years where there has been no offending. The Applicant drives long distances and no inferences can be drawn from the record in regard to his firearms licence.
Mr Candelori submitted that the Respondent's decision should be set aside.
[4]
Discussion
I agree with the Applicant's submission that on the evidence before me it is not possible to conclude that the Applicant assaulted Chris Carter. In my view the evidence suggests that it is likely that the Applicant had spoken with Chris Carter earlier on the day of the incident but that is not sufficient to allow an inference to be drawn in relation to whether or not the Applicant had either pushed or hit Chris Carter.
In regard to the 2004 incident involving the Applicant's co-worker I also agree with the Applicant's submission that on the evidence before me it is not possible to conclude that the Applicant had assaulted the co-worker.
No charges were ever brought in relation to the complaint made by the employee of the Pyrmont Marina and the Applicant has denied the allegation that there was any altercation between him and the employee of the Pyrmont Marina.
The Respondent has not provided evidence from any witnesses in regard to the incident involving Chris Carter, the incident involving the Applicant's co-worker or the alleged altercation at the Pyrmont Marina.
Nevertheless, it is clear from the material before me that each of these incidents alleges conduct on behalf of the Applicant that suggests he has an inability to control his behaviour when he is angry.
The allegations regarding some of the Applicant's conduct towards his ex-wife and the tenant is consistent with that view. The incident involving his assault on his sister is also consistent with that view.
There is sufficient material before me to raise concern that the Applicant could have a propensity to resort to violence when faced with disputes involving his partner and those with whom he is associated.
The Tribunal has regularly commented in regard to the objects of the firearms licensing regime in protecting the public and the need to make decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms. In my view, a person who demonstrates anger management issues presents a potential risk to the public should they possess firearms. In those circumstances it is not in the public interest for the licensee to continue to hold a licence.
I agree that the Applicant's driving record and his failure to submit accurate information in the licence re-application form are relevant considerations. The driving record demonstrates that the Applicant's disregard for traffic laws directed at ensuring public safety. At best, the failure to submit accurate information in the licence re-application form shows carelessness.
As has been noted in Ward v Commissioner of Police, New South Wales Police Service and numerous other decisions, the Tribunal must be satisfied that there is virtually no risk to the public if a licence is granted or a revocation is set aside. Only real and appreciable risk needs to be taken into account.
On the material before me I consider that issues regarding the Applicant's ability to manage anger suggest a real and appreciable risk and are therefore of great concern. It is my view that the Applicant should address these anger management issues before he should again be permitted to hold a firearms licence.
Addressing this issue may well be a relatively straightforward process. If, for example, the Applicant were to provide the Respondent with a psychological report that makes it clear that there is no reason to be concerned about the issue and that there is virtually no risk to the public if a licence is granted, the Commissioner may form a different view.
As noted above, pursuant to section 63 of the ADR Act, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. On the material before me, in the absence of evidence that addresses my concerns in regard to anger management, I am satisfied that the decision to revoke the Applicant's Category AB Firearms Licence is the correct and preferable decision. It should therefore be affirmed.
[5]
Order
1. The decision under review is affirmed.
[6]
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: 05 May 2022
Parties
Applicant/Plaintiff:
Morton
Respondent/Defendant:
Commissioner of Police
Cases Cited (7)
Applicable law
Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of decisions by the Commissioner to revoke a firearms licence.
This application is made under section 75 of the Act and the ADR Act.
The Act sets up a scheme to license people to possess and use firearms. The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides:
(1) The underlying principles of this Act are:
(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, and
(c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance in regard to how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]:
[W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 24(2)(a) of the Act provides that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of a licence would be contrary to the public interest.
Section 24(2)(d) of the Act provides that a licence may also be revoked for any other reason prescribed by the regulations.
Clause 20 of the Firearms Regulation 2017 ("the Regulation") provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether or not it is contrary to the public interest for the Applicant to hold a licence under the Act.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant.
The Public Interest
As noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:
"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
The 'public interest' allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The licensing regime is not about punishment but rather about protecting the public. It 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.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at paragraph [20], the Appeal Panel observed:
20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.
Mercer was applied in Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 ("Joseph").
In determining whether it would be contrary to the public interest for the Applicant to hold a firearms licence, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph at paragraphs [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at paragraph [30]. In taking criminal conduct into account, the Tribunal may apply a lesser standard of proof than the criminal standard: Joseph at paragraph [60]. To make a finding that conduct occurred is not to make a finding of criminal guilt.