The Applicant's domestic circumstances: s 11(4)(a) of the Act
The Respondent referred to a number of domestic violence incidents in which the Applicant had been involved:
1. In December 2016, the Applicant was accused by his 16-year-old daughter, Claire, who had run away from home, of having "bashed" her. Police were called, the Applicant's firearms were seized, and his licence suspended. Other family members gave a different version of the events and Claire later told Police that she had lied and that no assault had taken place.
2. In November 2017, Claire again reported to Police that the Applicant had stalked, intimidated and assaulted her and she sought an Apprehended Violence Order (AVO) against him. The Applicant's firearms were again seized and his licence was suspended for 28 days. The Applicant was arrested but, following his interview, as well as statements provided by other family member witnesses, no charges were filed and the AVO was not pursued.
3. In May 2018, Police were called to the Applicant's family home by a neighbour due to a domestic disturbance involving the Applicant and Claire. The Applicant sustained injuries from Claire having attacked him with a broken piece of terracotta, and the Applicant had then threatened her with a garden shovel. The Applicant and his son required urgent Apprehended Domestic Violence Orders (ADVO) against Claire, and she was charged with various offences. The Applicant's firearms were again seized, and his licence suspended for a period of nearly five months.
4. Also in May 2018, Police were called to the family home where the Applicant and his wife had an argument with Claire in the backyard and Claire had then attempted to get inside stating, "open the door I want to get a knife to kill myself". The Applicant reportedly told attending Police that Claire had attempted self-harm in the past.
5. In July 2018, Claire called Police to the family home during a heated argument with the Applicant, during which she had thrown a pair of scissors at him and she had also been in possession of a knife. Claire was arrested in breach of the ADVO.
6. In October 2019, Claire called Police to the family home to report that, earlier that evening, she had been assaulted by her father during a heated argument and she had used a knife in her own defence. A number of cannabis plants were found on the property. The Applicant was arrested, but following his interview, as well as statements provided by other family members, Police suspected that Claire had been the aggressor and she was subsequently arrested, charged, and served with an AVO. The Applicant's firearms were again seized for 28 days.
In her statement in these present proceedings, Claire wrote that the above events occurred during a difficult time in her life when she was experimenting with alcohol and drugs, becoming addicted. She conceded that the marijuana plants that were discovered in their backyard in 2019 were hers. She said she often acted irrationally, including towards her family, and especially towards her father. She now understands that her father was only attempting to help her, but, at the time, she could not comprehend his attitude and she made false reports to Police about him. She wrote that her father continues to care about her health and wellbeing and they have become much closer over the last few years. She moved out of home in 2019 and she no longer frequents her father's home; however, they communicate often via text and phone calls. Claire was not called for cross examination.
The Applicant's evidence was that he and Claire are now on good terms and that they talk on the phone and via text. She had apologised to him for her past behaviour. He said she had acted violently and had (unspecified) mental health issues as well.
None of the altercations brought to the attention of Police, resulted in the Applicant being charged, nor made subject to an DVO, despite being the alleged aggressor when Police were asked to attend. It is clear that the Applicant has had a problematic relationship with Claire for some years, but, that since she had moved out of home in 2019, their relationship has improved. The evidence, which I accept, is that Claire does not now frequent the family home.
In addition to the altercations with Claire, in March 2020, the Applicant attended a family member's home, together with his three brothers and mother. During a heated dispute about money the Applicant was assaulted with a knife by one of his brothers. An ADVO was sought against the brother, who was charged with assault.
In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
In Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31] the Tribunal observed that, given the breadth of the discretion and the Act's overriding object of public safety, there is no basis for differentiating between conduct of the Applicant himself and conduct of other persons which may impact on public safety in the context of a firearms licence.
While the Applicant may have had a volatile relationship with his daughter, and at least one other family member, I do not consider the evidence sufficient to satisfy me that the Applicant should not have a firearms licence solely because of his domestic circumstances.
[2]
Failure to comply with the safe keeping requirements: s 19(2) and failure to comply with condition of licence: s 24(2)(b)(iii)
On 12 October 2019, when Police attended the Applicant's residence due to the domestic incident with Claire referred to above, the Applicant told Police he had two firearms under the bed in the master bedroom. The Applicant said he ordinarily stored his firearms in the gun safe at his brother's home.
The Applicant's evidence was that he had been some 4 hours away shooting with his brother and that his wife phoned to say Claire was causing trouble at the family home and he had to return home to sort out the situation; it was "an emergency", and she was damaging property. He did not leave his firearms with his brother who remained at the property where they had been shooting; instead, he took them home. His evidence was that, rather than leave them unsecured in the car, he put them under the bed and locked the bedroom door. Neither of the attending Police, Constables Dirani and Martinez, recalled, one way or the other, if the bedroom was in fact locked. There was no evidence whether the Applicant's wife, who does not appear to be licensed, had access to the bedroom after the Applicant arrived home with the firearms. Attending Police did not record any damage to the property as the Applicant claimed, although the Applicant said his other daughter cleaned up some mess.
The Applicant denied that the firearms were "stored" at his home, although he said he cleans them there after shooting, before storing them at his brother's home. The Applicant said he had "no option" but to bring the firearms into the house and secure them there. He denied that leaving them with his brother at the property was an option.
There was no mention in the relevant COPS Event, nor in the officers' statements about whether the Applicant's wife was present when they attended nor that the Applicant had said he had been called home by her because of Claire's behaviour. Constable Martinez specifically said he had no recollection of the Applicant explaining that he had been called back from the hunting trip by his wife.
From the COPS Event and Constable Dirani's statement, the Applicant had been home since at least 5.45pm and it was then that he and Claire engaged in an altercation, which escalated to involve a knife. Police attended at about 9.50pm. The firearms were therefore unsecured, in the sense that they were not in a gun safe, for several hours. It was submitted on the Applicant's behalf that this was a "carriage situation", suggesting that the presence of the firearms at the Applicant's home was temporary, and occasioned by the urgency of having to deal with the situation about his daughter on the Applicant's return from the hunting trip with his brother.
I do not accept that the Applicant had "no option" but to store, even on a temporary basis, his firearms under the bed - he could have left them with his brother; he could have diverted to his brother's - less than 10 minutes away - to secure them in a gun safe. Having said that, I accept that secreting them under the bed was preferable to leaving them unattended in the car.
The Applicant had a special condition imposed on his licence from June 2017 although this was subsequently removed. The Applicant again had special condition imposed on his licence from 9 October 2018 that his firearms were not to be stored or possessed at any location where his daughter, Claire resided or frequented. As to whether the Applicant was in breach of the special condition, the Applicant said he understood the special condition on his licence only referred to "storing" firearms at his residence, and that, he said, was why no further action was taken against him in relation to the firearms located under the bed. When the terms of the special condition were brought to the Applicant's attention in cross examination, namely that the Applicant was not to store or possess firearms where Claire might reside or frequent, he conceded he may have "missed" "possess".
The Applicant's evidence was that when he arrived home he did not know if Claire would be there. He gave somewhat conflicting evidence about whether Claire was living at the family home at that time, saying, first, she would leave for a couple of weeks at a time, and he was not sure if she was living there at that time. Later, he said only that he did not know if she would be there when he arrived home. It was unclear if Claire was living at the family home at this time. While the COPS Event referred to her preparing food and taking it upstairs to eat, that, while suggestive, is not determinative of her residing at the premises. However, the COPS Event recorded Claire's address as that of the Applicant. I am satisfied, even if Claire were not residing at the Applicant's home, she at least frequented the premises. The Applicant therefore was in breach of the condition that he possessed firearms at a location frequented by Claire.
[3]
Public interest
The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. "Public interest" is not defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding how to exercise its discretion. The discretion is not confined except by the scope and purposes of the legislation itself and the Tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15] and Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
I accept that the Applicant has no criminal record and that he seeks a firearms licence to pursue his hobby - frequent shooting outings with his extended family at their property and neighbouring properties. Private interests however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, this includes 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 at [33].
There are a number of features of the Applicant's conduct, each, of which, on its own may not have sufficed to preclude the Applicant from holding a firearms licence, and these give rise to concern in the context of public protection, public safety and public confidence in the administration of the licensing system. Firstly, the Applicant disregarded the requirement to support his claimed genuine reason (sport/target shooting) for holding a firearms licence. This has been found to be contrary to the public interest: Todorovski v The Commissioner of Police [2019] NSWACT 192 at [130]. Furthermore, the Applicant failed to notify the Respondent of the cessation of his membership of the Club, such membership which he had relied on to support his genuine reason of sport/target shooting. Further, the Applicant, in his subsequent licence applications, including his most recent firearms licence re-application dated 31 August 2018, certified he could support his claimed genuine reason of sport/target shooting, when, plainly, this was not the case.
Secondly, the Applicant had a clear lack of understanding that Claire could not frequent a place where he possessed firearms; the evidence was clear that, at least from time to time, Claire visited, and perhaps even lived at the Applicant's home. Her evidence was that she did not move out of the home until 2019. The Applicant's evidence was that it was his practice was to clean his guns at home after shooting and before storing them at his brother's home. Further, the Applicant was prepared to store his firearms, even if only temporarily, under the bed at his home.
Thirdly, Mr Karja's evidence was that, to date this year, the Applicant has visited his property to shoot some 8-9 times; in 2021 he had also visited the property regularly to shoot. The Applicant's licence had been suspended in March 2020, consequently, from that time, he was not permitted to use a firearm. The Applicant's solicitor submitted that little weight can be attached to Mr Karja's evidence because, on his own account, he was not himself present with the Applicant and his party on shooting expeditions. It was suggested, for example, that the Applicant might have held a light for shooters. I do not accept this to be a plausible explanation, especially in circumstances where the Applicant, a keen hunter, attended the property with such frequency and yet, on the submission of his solicitor, may only have undertaken the presumably far less satisfying role of light-bearer. Mr Karja was sufficiently aware of the Applicant's attendances to know that the Applicant attended to shoot with his wife, 2 daughters and his son. Mr Karja's evidence might also suggest that Claire was present when the Applicant was shooting, which would be an additional breach of his licence condition. Furthermore, there was no evidence that other members of the Applicant's immediate family held licences, the absence of which would defeat the purpose of a family outing to shoot.
Further, notwithstanding the extended shooting trips of several days, there was no evidence that the Applicant's family property where they stayed, adjacent to Mr Karja's, has a gun safe, in which firearms are secured when not in use.
There are also concerns in relation to what might be described as the Applicant's sense of entitlement in respect of his firearms. For example, following the 2016 incident, the Applicant attended Campsie Police Station in February 2017 and reportedly "demanded" that his firearms be returned to him as it was past the "28 day cooling period", failing to appreciate that his licence suspension was still current and under review. Similarly, when the Applicant's first suspension was lifted and firearms returned to him on 14 February 2017, he was informed that a special condition would be placed on his licence he reportedly told Senior Constable Constantinou that he would "speak to a solicitor and fight it in Court''. He sought review of the decision, as was his right, and the special condition was removed. For this he cannot be criticised.
Senior Constable Constantinou's evidence was however, that, when challenging his special condition, the Applicant said that he liked to be able to take his guns home after going hunting with his brothers and felt that the special condition was a nuisance for him. The evidence of Senior Constable Constantinou, who was not called for cross examination, was that in all his interactions with the Applicant in relation to his firearms between 2016 and 2020, he perceived the Applicant to be "rude, standoffish and argumentative". There were examples of the Applicant having been co-operative with Police such as when he was the subject of complaint by his daughter. However, when he appeared to have perceived unfairness or inconvenience with respect to his firearms, his observed demanding conduct towards Police was not consistent with that expected of a licence holder who is staunchly compliant with the licensing regime.
The submissions on the Applicant's behalf included general submissions about the Police practice of seizure of a person's firearms for 28 days when that person is in fact the victim, rather than the perpetrator, of domestic violence. There was no evidence that this occurs routinely, although it would be unremarkable if it did not. Domestic violence is clearly at the heart of s 11(4)(a) of the Act, and the Tribunal has considered many times circumstances where the licence holder is not the perpetrator of the domestic violence: see for example, Mekhitarian v Commissioner of Police [2022] NSWCATAD 198 and Lee. That firearms were seized in those circumstances is entirely unsurprising, especially where, as here, it is not until there had been a more detailed assessment of the complaint to Police, that it was ascertained that the Applicant was not in fact the perpetrator of the assault. It was submitted that the seizure was unreasonable, and the Applicant's response was therefore understandable. The Applicant's solicitor referred to the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 in relation to powers that may be exercised on entry into premises and powers of enter and search in relation to firearms: ss 85 and 86. I do not propose to canvass those provisions; to do so would be a distraction from the matter at hand.
[4]
Conclusion
The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege, not a right. Strict controls on the possession and use of firearms are imposed, particularly in the interests of public safety. Taken together with the matters outlined above, I find that the Applicant's circumstances are such that it would be contrary to the public interest for him to hold a firearms licence at this time. It follows that the decision under review should be affirmed.
The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 07 October 2022
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].
What is the Applicant's genuine reason for having a firearms licence?
In his re-application dated 31 August 2018 the Applicant provided the genuine reasons of sport/target shooting and recreational hunting/vermin control.
In his statement, in relation to target shooting, the Applicant wrote that he had been a member of the Sydney Clay Target Club (the Club) from 1993 until 2008. After that, he said, as he was not participating in competitions, he did not renew his Club membership. In his statement he wrote that he "occasionally" would shoot at the Club as a visitor; although he said in his evidence, that he would shoot there approximately once a month and had done so since 2008. He also said he had attended as a visitor on more than 20 occasions. He did not provide any corroboration of his activities, and it is unknown if the Club retains a record of visitors.
Section 12(4) of the Act contains a Table in respect of genuine reasons that relevantly provides:
Table Reason: sport/target shooting
The applicant must be a current member of a shooting club approved by the Commissioner in accordance with the regulations, and which conducts competitions or activities requiring the use of the firearm for which the licence is sought.
Clause 107 of the Regulation sets out participation requirements to support a claimed genuine reason of sport/target shooting which repeats the requirement for membership of at least one shooting club and requires participation in at least 4 shooting activities. The Applicant gave an inconsistent account of the frequency with which he attended the Club as a visitor. Even if the Applicant may have attended the Club as a visitor on the requisite number of occasions, he admitted that he had not been a member of the Club since 2008. As such, he does not meet the requirements for the genuine reason of sport/target shooting: s 12(4) of the Act.
Clause 15 of the Regulation provides:
(1) If a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days of ceasing to have that genuine reason, notify the Commissioner in writing of that fact.
Maximum penalty: 50 penalty units.
The same provision was in the Firearms Regulation 2006: cl 14(1). Hence the Applicant should have notified the Firearms Registry when he allowed his membership of the Club to lapse in 2008, as he then ceased to have the genuine reason of sport/target shooting in accordance with the Table in s 12(4).
In his statement the Applicant wrote that he agreed that he should have removed sport/target shooting from his claimed genuine reasons for having a firearms licence. As he was still compliant with the 'hunting' activities it did not occur to him, he said, to remove the other reason he originally nominated. It is not relevant however that the Applicant did not intend to breach the requirements. As a licence holder he was obligated to meet the conditions on his licence. When he was aware that he was unable to meet those conditions, namely the participation requirements, he should have notified the Firearms Registry: Alkini v Commissioner of Police [2022] NSWCATAD 299 at [69].
In his recent application the Applicant signed a declaration confirming that he understood his obligations under the firearms legislation, undertaking that he could satisfy the legislative requirements and produce evidence of his genuine reasons. The certification specifically provided the example of club membership to support sport/target shooting. His certification was plainly false. See Nepotu v Commissioner of Police, NSW Police Force [2020] NSWCATAD 101 (Nepotu) at [40]. The Applicant wrote in his statement that the renewals "paperwork" he completed only referred to whether he could comply with the conditions required to have a firearms licence, and as he was regularly hunting, he believed he was compliant for the purposes of the disclosure. In view of the clarity of the form, I do not accept the Applicant's explanation.
It is trite to say that holders of firearms licences must understand and comprehend the requirements of the Act and the Regulation, and must also act in accordance with them: Nepotu at [41]. See also Lukas v Commissioner of Police [2021] NSWCATAD 268 at [73]. The Applicant has shown an ongoing disregard for the legislative requirements and the strict controls around firearms licence, which cannot be overlooked: Todororovski v The Commissioner of Police [2019] NSWCATAD 192 at [130].
In Kassem v Commissioner of Police [2021] NSWCATAD 213 at [30] I observed that:
The legislation set out clear obligations ... the failure to comply could not be disregarded as an oversight.
The Applicant in that matter, as here, failed to comply with those obligations over a period of several years, not just in relation to his present application.
In relation to the genuine reason of recreational hunting/vermin control, Mr Karja wrote that the Applicant has been authorised to shoot on his property for well over 15 years. The Applicant is a keen hunter, he wrote, and would hunt at least 15 times throughout the year, always visiting with his family. Mr Karja also understood the Applicant to have hunted on neighbouring properties for the same period of time. He considered the Applicant to be a reputable hunter and one of the most passionate and responsible hunters he had come across. He always trusted him when he was on his premises and the Applicant's family were very respectful of his property and land when visiting his farm. In his evidence he confirmed that the Applicant had attended his property for 15-16 years, and that he had done so about 15 times a year - at least monthly and sometimes twice a month. He was frequently accompanied by his wife, 2 daughters and his son, and also his brothers. The Applicant's family owns the adjacent property where they stay during their visits. Mr Karja was unaware if the Applicant has a firearms safe at his property, but doubts that he does. I accept that the evidence of Mr Karja supports the Applicant's claim for a genuine reason of recreational hunting/vermin control.
The solicitor for the Applicant referred in submissions to my decision in Aloschi v Commissioner of Police [2021] NSWCATAD 64 (Aloschi). There, as here, the Applicant, even though not a member of a gun club, was still able to satisfy the 'genuine reason' for his licence on production of authority to shoot, and evidence that he had done so. See also Lee v Commissioner of Police [2021] NSWCATAD 169 (Lee). As I found in Aloschi, that a person does not satisfy all of their nominated genuine reasons, does not preclude them from consideration for a firearms licence.