Mulligan v Commissioner of Police

NCAT Administrative and Equal Opportunity|2020-10-29

Applicable legislation

Section 19(1) of the Firearms Act provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
In this case it is not argued that the applicant is not a fit and proper person to hold a firearms licence. The issue is whether the correct and preferable decision is to affirm the decision to impose the condition as amended.

The evidence

The respondent did not call oral evidence but relied on the s 58 documents (exhibit R1) and certain confidential material (confidential exhibits CR2 and CR 3).
The applicant gave oral evidence by telephone in which he adopted his statement dated 25 September 2020 (exhibit A1). To a great extent that document's contents consist of comment or submission, but there are also a number of propositions of fact that may be referred to. The witness said that the firearms that were once secured and his brother's residence were secured in accordance with the Firearms Act. In addition to the requirements of the Act, he keeps the keys to the safe with him in Sydney (more than 550 km from Khancoban.
If the special condition were removed from his licence, he would no longer store any ammunition at his brother's residence and would remove the bolts from the rifles, which would render them inoperable. Without ammunition or bolts, the firearms could not be fired. Even if the firearms could be accessed by someone cutting open the approved safes, the firearms could not be fired in any event.
It appeared to be his brother's character that was in question. The most recent AVO application that had been brought against him had been withdrawn and dismissed after Terrence pleaded not guilty, the person needing protection not being willing to substantiate her allegations under oath. It was "a stretch" to consider that his brother, who has no history of mental illness, would harm his own children. He had spent much time with Terrence and his sons and his ex-wife, and had never witnessed any violence. Terrence is a difficult person to deal with, but certainly not capable of harming his children.
The firearms in question had been stored at Douglas Street, Khancoban since 21 October 2019. The firearms registry did not raise an issue with that location until they received a phone call on 1 June 2020. The keys to the firearms safe at the Khancoban residence are kept by him at all times in Sydney and no other person has access to the safe. The safe was observed by police to meet storage requirements.
He himself would do nothing that would endanger the lives of anyone, especially those of his nephews whom he loves dearly. If he thought that they were in any danger at all, he would not store the firearms with his brother and would probably attempt to dispose of them to his son, who lives in South Australia. As was stated, the firearms would be stored without ammunition and without bolts, so they could not be fired.
He had first held a firearms licence when he was 16, after his father taught him to shoot. He represented his school in Corryong, Victoria, shooting at clay targets for most of his school life. He held a shooter's licence in the Northern Territory and had obtained his New South Wales licence again after his father passed away and left his firearms to him. He was in the navy for 10 years, so his experience with firearms is extensive, and he is aware of the dangers that they represent in the wrong hands. He is a law-abiding citizen who should be trusted to ensure the safe keeping of his firearms in accordance with the Firearms Act, as he had done all his life.
Cross-examined by Ms Norquay, he said he did not think he had talked to police about moving his firearms storage before the condition was imposed in June 2020. He had moved his firearms there on 21 October 2019 because he and his wife were moving house and he now works in Sydney. His attention was drawn to a police event report dated 11 March 2020 (exhibit R1, supp. p 5) which stated that police had on that date contacted the applicant and apprised him of the situation with his brother.
It recorded that he had informed police that he was considering moving the firearms or transferring ownership. Police told him that the current storage situation was in line with the firearms legislation. The witness said he could not recall the date of that conversation, but thought it had been 5 or 7 months after he had changed his safe storage. There had been no discussions about safe storage on 21 October 2019, and no problem was seen.
The applicant said he had no criminal history and he believed his brother's record consisted only of the two infringements arising out of the safe storage issue with the air rifle. He had received a s 10 discharge.

Respondent's submissions

The respondent relied on written submissions filed on 20 October 2020 which began by pointing out that Terrence Mulligan was a prescribed person for the purposes of s 11(5)(c) a result of an AVO and remains so until 23 November 2026. He had been found guilty of an offence under the Act and as a result his firearms licence was revoked. There continued to be police intervention between Terrence and his ex-wife, with the most recent report being made on 12 June 2020.
Police had contacted the Firearms Registry in relation to a number of domestic violence reports, including reports dated 9, 11 and 19 March 2020, concerning telephone calls Terrence had made to his children, which had caused them to become upset. A safe storage inspection was undertaken in relation to the firearms stored at Terrence Mulligan's residence. The applicant was contacted and had indicated that he was considering moving the firearms or transferring ownership. The current storage was "in line" with firearms legislation and no offence had been committed by Terrence, though police advised him not to contact his ex-wife.
The report dated 8 April 2020 referred to police meeting with Terrence's sons H*** (aged 11) and B*** (aged 10), the former saying that his father had said that he hates their mother, and that had upset him. His father had commented that when his ex-wife's new partner had broken his leg, that it should have been his neck. B*** said he did not want to go to his father's house any longer because he was scared that his father might kill them, because his father "always drank beers". He was not, however, able to expand on what he meant by that, or to disclose any specific threats.
A further report dated 1 June 2020 resulted in police contacting the applicant and strongly suggesting that he seriously consider finding an alternative safe storage address for his firearms. The special condition was imposed on his licence the following day, and was later amended as indicated above.
In Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23], the tribunal had noted that there is no guidance in the legislation as to how discretions such as the one in s.19(1) should be exercised, but they should be exercised so as to promote the principles and objects of the Act. The principles and objects are set out in s 3. The licensing regime is about identifying the possible risk to the public and then making decisions that are consistent with a need to reduce any risks to a minimum: Petas v Commissioner of Police, New South Wales Police Force [2013] NSWADT 137, [36].
The issue to be addressed by the tribunal was therefore whether considerations of public interest, or a concern for the risk to public safety, justified the imposition of the special condition. That is to say, whether the inconvenience suffered by the applicant as a consequence of the imposition of the special condition was necessary to ensure public safety: Robinson t/a Botany Mascot Security v Commissioner of Police, New South Wales Police [2008] NSWADT 17, [65].
Tolley v Commissioner of Police [2006] NSWADT 149, in which the Commissioner's concerns for public safety arose from the conduct or antecedents of the applicant's son, not of the licence holder himself, established that there was no basis for differentiating between the conduct of an applicant and the conduct of another that could impact on public safety in the context of a firearms licence. It was somewhat different from the facts in the present case, in that here neither the applicant nor his brother had the same criminal history or criminal associations that Mr Tolley's son had. But there were a number of relevant factors that created an actual risk in this case.
First, Terrence Mulligan was made subject to an enforceable AVO in 2015 as a result of threats made about his ex-wife and her new partner: "Ring your mate…. Tell him that he will be found lying on the floor of his dairy, with his head caved in if I find out that he is having an affair with T*** [his now ex-wife]. I'll get the 243 rifle and blow his head off". Secondly, when the AVO was issued, Terrence's firearms licence was suspended and his firearms were seized, whereupon police found him to be in possession of an unregistered air rifle. He was later charged and found guilty of an offence under the Act, and his licence was revoked.
Thirdly, there continue to be police intervention between Terrence and his ex-wife, the most recent report being made on 12 June 2020. Although the allegations made to police had not given rise to an AVO or any charges, they caused sufficient concern that enquiries were made concerning the storage of firearms at his house, and a strong suggestion was made to the applicant by local police that his firearms not be kept there.
Those allegations are of a serious nature and it is not known whether they will continue to occur, particularly as there are no Family Court orders in place concerning the custody of the children. Consequently there exists a risk to the public safety if the firearms were to be possessed or stored at the applicant's brother's residence, and the special condition properly addresses that risk. The tribunal had said in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22], that exercise of the discretionary powers should not be withheld merely because the licensee might suffer hardship, or inconvenience or both. 31 The respondent noted the applicant's suggestion that if the special condition were removed, he would no longer store ammunition at his brother's residence and would remove the bolts from the rifles, which would render them inoperable. The respondent maintained that the condition as imposed was appropriate, but indicated that if the tribunal were minded to agree with the applicant's position, the respondent submitted that a condition in the following form could be imposed as an alternative: "The licence holder is prohibited from storing firing bolts, firearm parts and ammunition at any location where Terrence Kevin Mulligan (DOB: ********) resides or frequents until his firearms licence expires or is renewed, whichever is the latter".
At the hearing the respondent reiterated those points, noting that Terrence's threat to shoot his ex-wife's new partner with the 243 had been made to a witness and that in a conversation with the police he had admitted making the threat.
The main issue was the continuing police intervention in relation to Terrence. Police had raised the issue with the applicant in March 2020, advising him to move his safe storage. In the absence of any Family Court orders, it was not clear when the conflict between Terrence and his ex-wife would be settled.
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Applicant's submissions

The applicant adopted his written submissions (exhibit A1) in which he acknowledged that his brother's character was in issue, but submitted that his non-conviction in relation to a single incident did not amount to a criminal history. An expired 2015 AVO that was agreed to without admissions that was used to remove him from his house after his wife had an affair with the next door neighbour should carry little weight. The later AVO application had been withdrawn and dismissed after his brother pleaded not guilty.
Essentially any allegations against Terrence had not been tested in court and are a result of a broken marriage where there were no offences for 34 years and an AVO used to gain an advantage over him and his children. Reports by third parties do not relate to his brother's mental state and had been bought and paid for by one half of a custody dispute. Any information supplied by anyone making those reports was not a result of any interview with him, but rested on baseless allegations of his ex-wife. The firearms registry did not raise an issue with the location of his firearms until, according to event E 74966576, they received a phone call on 1 June 2020, some 7 months after the storage commenced. That would indicate that the action taken by the registry resulted from the phone call and not from any fears the registry had of domestic violence. No incidents had occurred in the preceding seven-month period, and no incidents occurred after the first AVO expired. T*** herself had stated that no incidents occurred.
It was not disputed that a police inspection of the Khancoban house confirmed that there were no breaches of the safe storage legislation and that the keys to the safe were kept by the applicant at all times in Sydney. The safe was observed to meet storage requirements.
If he had believed that his brother was a domestic violence offender, he would not have submitted the present application. It would have been much easier for him to accept the condition and move on, but he believes that the registry has overstepped on this occasion.
At the hearing the applicant reiterated those points, saying that the respondent's grounds were "thin", as he had no record himself. His brother had not made any threats to his ex-wife, but had made telephone calls. The statement about the .243 was in a conversation with a third party, and therefore constituted hearsay, not a direct threat. It had never been tested in court. In any event, his brother was not applying for a licence. It would be most unlikely for him to "get a grinder" onto the firearms safe in order to open it.
The registry had no issue with his storage until June 2020, when T*** found out that his firearms were stored there. But there had been no issues before March 2020. His brother had indeed made telephone calls, but that was the only way he could contact his children. The calls had not included any threats.
As regards Tolley, he assumed the person in question had an extensive criminal history. He himself had none, and his brother only had one incident giving rise to findings of guilt. The situation here was different. He had proposed an alternative wording for the special condition to the firearms registry but had heard nothing. The present formulation was ambiguously worded and should be rewritten. There was currently no AVO in force and the event reports had not been tested or admitted. Terrence was "a hothead", but had made no threats to his ex-wife or her partner. There was little evidence to support the making of the special condition and the facts lay at the bottom end of the scale.

Jurisdiction and approach

This tribunal has jurisdiction to hear and determine this application by reason of s 75(1)(b) of the Firearms Act and s 9(1) of the Administrative Decisions Review Act 1997 (ADR Act). Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one.
The tribunal is to review the merits of the original decision and 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 is to make its own decision and there is no presumption that the registrar's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
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]. Nevertheless, the civil standard of proof on the balance (preponderance) of probabilities as set out in s 140 is considered to be an acceptable guide to fact-finding.

Principles to be applied

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. Similarly, under s 11(7) of the Act, the Commissioner may refuse to issue a licence if of the view that issue of the licence would be contrary to the public interest. It is against that background of the Commissioner's power to impose conditions on firearms licences under s 19(1) must be applied.
In this case it is not the record or conduct of the applicant that is in issue, but that of his brother Terrence Mulligan, who lives at Khancoban where the applicant's firearms are stored. The fact that it is not the applicant's conduct that is of concern is immaterial, however. In Tolley v Commissioner of Police, New South Wales Police [2006 NSWADT 149, the applicant had no criminal record and had never come under adverse police notice, but his son, who lived with him, was on bail awaiting trial on serious drug charges, including commercial supply. The offences with which he was charged had been committed while on parole following earlier convictions for drug offences committed from the applicant's residence, where the applicant's firearms were stored. There were no firearms violations alleged against the son, but his co-accused were facing several charges for breaches of the Firearms Act.
When upholding a condition on the applicant's license that Tolley should not store firearms at his residence, Fitzgerald JM declared that there was "no basis for differentiating between the conduct of the Applicant himself and the conduct of another which may impact on public safety…." (at [31]). In the present case, Terrence Mulligan's conduct is of a far lesser degree of gravity than was involved in Tolley, but the relevant point is whether Terrence's conduct and antecedents are likely to present a threat to public safety and the public interest if the applicant's firearms are stored at his place of residence.

Application to this case

In making the case that there would be such a threat, the respondent relied on three facts and circumstances. The first is that Terrence Mulligan was made subject to an enforceable AVO in 2015 as a result of threats that were made to his ex-wife T*** and her new partner, including, "Ring your mate…. Tell him that he will be found lying on the floor of the dairy, with his head caved in. If I find out that he is having an affair with T***, I'll get the 243 rifle and blow his head off".
The applicant submitted that the incident did not involve any threat being made directly to T*** or her new partner, and that it was hearsay and had never been tested in court. In a tribunal that is not bound by the laws of evidence, the fact that a statement is hearsay goes only to weight, not admissibility. Further, Terrence admitted to police that he had made the threat (event E 59992873, exhibit R1, supp p 8), adding that he had been angry at the time and had only made the comment to a friend. Nevertheless, it was a grisly threat involving firearms and the maker plainly intended that it should be relayed to T*** and her new partner. As a result of the AVO, Terrence is a "prescribed person" for the purposes of s 11(5)(c) of the Act until 23 November 2026.
On the other hand, five years have passed since the comment was made and there is no evidence of further threats of that nature, especially involving firearms.
There have, however, been more recent angry telephone calls (although apparently not involving any threats) in March and a report dated 8 April 2020 referring to a police meeting with Terrence's young sons H*** and B***, with H*** saying that he has said bad things about his mother and that has upset him, and that when the new partner had broken his leg, he said it should have been his neck. B*** had said he no longer wanted to visit his father's house because he was afraid this father might kill them, as he "always drank beers". (Event E 74919508, exhibit R1, supp p 2). Police noted that he was unable to expand on what he meant by that or mention any specific threats. That rather suggests that B*** might have been coached.
The second matter on which the respondent relies is that when the AVO was issued, Terrence's firearms licence was suspended and his firearms were impounded. When police were taking possession of his firearms, they found that he was in possession of an unregistered air rifle, a contravention of the Firearms Act for which he was charged and pleaded guilty. He was given a s 10 discharge without conviction.
It is not disputed that he voluntarily produced the rifle in response to a query from the attending police. The applicant also submitted that a .177 air rifle is not in reality a lethal weapon. Be that as it may, it could certainly cause injury and Terrence was found guilty on two counts in relation to the incident. That circumstance inevitably raises a doubt about whether he would comply with firearms legislation if the applicant's rifles were stored at his premises.
Thirdly, and this is the respondent's main ground of concern, there continues to be police intervention between Terrence and his ex-wife. The most recent report dating, from 12 June 2020, caused enough disquiet that enquiries were made about the storage of firearms at Terrence's house, and a strong suggestion to the applicant from local police that his firearms not be kept there. The reports have been outlined above.
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The appropriateness of a special condition on a firearms licence is a function of the public interest. In the context of firearms licensing, the overarching component of the public interest is public safety. 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" (see also Hook v Commissioner of Police [2020] NSWCATAD 250, [77] - [80]). 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].
Terrence Mulligan's conduct and record provide grounds for concern in relation to the protection of public safety. He was involved in an incident in 2015 that led to findings of guilt against him on two counts under the Firearms Act. Shortly before that, he was the subject of an AVO arising from the indirect threat he made to his wife's paramour about the use of the .243 against him. That led to his being a prescribed person for the purposes of firearms legislation until 2026. Since 2015 there have been a number of angry telephone calls and exchanges with his now ex-wife, which have proved upsetting for their two young sons.
These interactions have resulted from an acrimonious marriage breakdown and have necessitated repeated instances of police intervention. Despite the commendably irenic endeavours of local police, the situation does not appear to have de-escalated.
On the other hand, police have found no evidence of any threats for the last five years and have observed indications suggesting that Terrence's sons may have been coached to make statements adverse to their father. There are some reasons for believing, therefore, that the complaints made against Terrence may be exaggerated.
There is no character evidence in support of Terrence, except that of the applicant, who describes his brother as a difficult person to deal with and a "hothead", but is adamant that he would never do anything to hurt his children. As a former naval man, the applicant is very familiar with firearms and keenly aware of firearms safety practices, and he thinks it most unlikely that his brother would "get a grinder" onto the firearms safe in an attempt to open it. If he had thought that Terrence was involved in a domestic violence situation, he would never have launched the present application.
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On all the evidence, however, I conclude that the circumstances warrant the imposition of a special condition on the applicant's licence in order to safeguard public safety and protect the public interest. There remains, therefore, the question of whether the appropriate wording for such a condition is that proposed by the respondent or something closer to the applicant's proposed formulation.

Wording of the condition 66 To recapitulate, the present wording of the special condition is: "The licence holder is prohibited from possessing or storing firearms, firearm parts and ammunition at any location where Terrence Kevin Mulligan (DOB: ********) resides or frequents". The respondent acknowledges that the present wording creates difficulties for the applicant, given that he resides in Sydney and travels to properties near his brother's residence to participate in recreational hunting and vermin control, but points out that in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22] the tribunal said that a decision-maker should not shy away from the exercise of the discretion merely on the ground that the licensee may suffer hardship or inconvenience.

But equally, restrictions imposed by a special condition should not go further than is required for the protection of public safety. In Robinson t/a Botany Mascot Security v Commissioner of New South Wales Police [2008] NSWADT 17 the Commissioner had imposed a condition on a pistol licence held by a security firm that the firearm should not be used for the purposes of protecting persons or property, which the applicant contended seriously hampered the conduct of his security business. The tribunal saw the issue as being "whether the inconvenience suffered by the Applicant as a consequence of the imposition of these conditions is necessary to ensure public safety" (at [65]).
Grant JM indicated that the Commissioner had to discharge a kind of onus of showing that the restriction was necessary for public safety: "Given that… the Respondent has failed to provide any convincing evidence of a risk to public safety or public interest considerations that would justify the imposition of the conditions in dispute, the conditions cannot be justified…." (at [67]).
The tribunal concluded that there was no warrant at law for the condition on the category H licence. No considerations of risk to public safety or considerations of public interest justified the imposition of a condition (at [80]). 70 On all the evidence, considerations of public safety and public interest do not justify a condition imposing such sweeping restrictions. Although the present wording is the respondent's preferred position, the Commissioner does put forward an alternative formulation that could be found appropriate: "The licence holder is prohibited from storing firing bolts, firearm parts and ammunition at any location where Terrence Kevin Mulligan (DOB ********) resides or frequents until his firearms licence expires or is renewed, whichever is the latter". 71 That language would constitute a special condition appropriate for safeguarding against what the tribunal in Webb called any "real and appreciable risk", subject only to a minor amendment to provide for the eventuality that the applicant acquires a firearm that does not use a bolt action. Without a licence, Terrence could not procure ammunition or bolts (let alone the bolts for the applicant's particular models of rifle), even if he managed to break open the safe. The condition would thus read: "The licence holder is prohibited from storing firearm bolts, breech blocks and ammunition at any location where Terrence Kevin Mulligan (DOB: ********) resides or frequents, until the licensee's licence expires or is renewed, whichever is the later".
Subject to the special condition's wording being varied as indicated, the decision under review should be affirmed. Confidentiality orders under s 64(1)(c) and (d) of the CAT Act are made.

Orders 1. The decision under review is varied by rewording the special condition so as to read as follows: "The licence holder is prohibited from storing firearm bolts, breech blocks and ammunition at any location where Terrence Kevin Mulligan (DOB: [insert date]) resides or frequents, until the licensee's licence expires or is renewed, whichever is the later". 2. In all other respects the decision under review is affirmed. 3. Pursuant to ss 64(1)(c) and (d) of the CAT Act, the transcript and recording of the confidential hearing, confidential exhibits CR2 and CR3 and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

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

Amendments 06 November 2020 - Numbering Corrected. Anonymised information corrected. 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: 06 November 2020

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