Peel v Commissioner of Police, NSW Police Force

The Evidence

1. The documents filed by the respondent pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) were: 1. The applicant's firearms licence history. 2. The applicant's criminal history relating to the charges withdrawn on 6 May 2019. 3. COPS information and traffic history relating to the applicant, including the fact sheet dated 22 November 2018 relating to the charges against the applicant arising from the incident on 25 October 2018. 4. Notice of suspension of the applicant's minor's permit under the Firearms Act and notice of the lifting of that suspension. 5. Documents concerning the history of the applicant's Category AB firearms licence including the application lodged by the applicant in 2013, the application for renewal lodged in 2018 and the notice of suspension dated 30 November 2018. 6. Notice of revocation of the applicant's licence dated 15 August 2019. 7. The applicant's request for internal review of the decision to revoke his licence dated 20 September 2019 and statement of reasons on internal review dated 10 June 2020.
2. The s 58 documents also included a computer file containing video recorded by Mr Ottaviano on his mobile phone.

Respondent's additional evidence

1. In addition to the s 58 documents, the respondent filed in the Tribunal witness statements of three of the occupants of the other vehicle, who I will refer to as Mr I, Mr F, and Mr M [1] , dated 28 or 29 October 2018; a statement of Senior Constable Matthew Rheinberger who served the notice of suspension upon the applicant on 9 December 2018 and seized a number of firearms; an exchange of emails between the Adjudication Officer who conducted the internal review and Senior Constable Rheinberger; a Traffic Record Report for the applicant dated 13 October 2020; and a statement of Senior Constable Michael Voyez dated 27 October 2020, to which was annexed a transcript of a record of interview between Senior Constable Voyez and the applicant.

The applicant's evidence

1. The applicant filed an affidavit sworn by himself dated 4 September 2020 and an affidavit sworn by Mr Ottaviano dated 9 September 2020.
2. Each of the parties filed written submissions. The applicant also filed a submission in reply.

Jurisdiction and relevant statutory provisions

1. The Tribunal has jurisdiction to review the decision of the Commissioner pursuant to s 75(1)(c) of the Firearms Act 1996 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW).
2. Pursuant to s 63 of the Administrative Decisions Review Act, in determining the application, I am required to decide what is the correct and preferable decision having regard to the material before me.
3. The issue of a firearms licence is governed by the Firearms Act 1996 (NSW). The underlying principles of that Act as set out in s3(1) are: 3. Principles and objects of Act (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
4. Section 24(2)(d) of the Firearms Act provides that a firearms licence may be revoked for a reason prescribed by the Regulations.
5. Regulation 20 of the Firearms Regulation 2017 (NSW) provides: "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."
6. In Martin v Commissioner of Police, New South Wales Police Force [2010] NSWADT 276, Judicial Member Montgomery summarised the role of the Administrative Decisions Tribunal in reviewing a decision to revoke or refuse a firearms licence in the following terms: 68. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material then before it. The Commissioner contends that it is not in the public interest for the Applicant to hold a licence. It is necessary to consider that issue. 69. The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: "The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 70. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual" 71. There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter. 72. In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25] 25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ... 73. A firearm licence is a privilege and not a right. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at paragraph [25]. 74. The underlying principles of the Act stated in section 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk".
7. In relation to the reference at the end of that passage to "virtually no risk", Deputy President Hennessy subsequently stated, in AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [8], that: 8 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.
8. More recently, in Martin v Commission of Police, NSW Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal held: 64 In relation to the Act's emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which 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 not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] - [79]. 65 In Webb v CoP [2004] NSWADT 110, for example, 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": [32]. 66 The question of risk is therefore not 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.
9. That decision was the subject of an appeal, Commissioner of Police, NSW Police Force v Martin; Martin v Commissioner of Police, NSW [2018] NSWCATAP 27, but no doubt was cast by the Appeal Panel upon the above statements.

The Incident of 25 October 2018

1. As the incident on 25 October 2018 was central to the original decision to suspend and subsequently revoke the applicant's licence, I will address the evidence concerning that incident and make findings before turning to address other matters relied upon by the respondent.
2. As noted above, the statements of Mr I, Mr F and Mr M presented a version of events which differed markedly from that set out in the affidavits of the applicant and Mr Ottaviano.
3. As the application is to be dealt with on the papers, there has been no cross examination of any witness.

The version of the incident set out in the statements of Messrs I, F and M

1. Each of the statements of Messrs I, F and M, who I will refer to for convenience as the Ranger occupants, were to similar effect. Each stated: that they had been out pig hunting in a Ford Ranger dual cab vehicle (the Ranger) and that Mr I was driving; that a fourth person was in the passenger seat and Messrs M and F were in the back seat; and that the Ranger belonged to Mr M.
2. Each of the Ranger occupants stated that, while they were driving alongside the property where the interaction with the applicant commenced, a dog had jumped from the rear of the vehicle and Mr I had driven onto the property, where they believed the dog had headed. Each of the Ranger occupants stated that they followed a track onto the property and that there was no gate inhibiting their access. They drove for about 500 or 600 metres (according to Mr I), one kilometre (Mr F), or a couple of hundred metres (Mr M) onto the property and collected the dog, at which point the applicant's vehicle entered the paddock and drove at speed towards the Ranger.
3. Each of the Ranger occupants asserted that Mr I had to brake sharply in order to avoid a collision and that after further manoeuvring Mr I exited the property onto the road.
4. Mr I stated that while in the paddock he could see a rifle pointing out of the passenger side window of the applicant's vehicle.
5. Mr I stated that the applicant was shouting threats to shoot Mr I and the others in the Ranger.
6. Each of the Ranger occupants stated that, having driven onto the road, they were pursued along the road by the applicant's vehicle. Each of the Ranger occupants stated that the applicant had pulled alongside the Ranger at high speed and each stated that they observed a rifle pointing out of the passenger window of the applicant's vehicle.
7. Messrs F and M both stated that it was the passenger in the applicant's vehicle who was holding the rifle.
8. The Ranger occupants also asserted that, after the applicant had driven alongside the Ranger driven by Mr I, the applicant had turned off on a side road and subsequently returned to the main road ahead of the Ranger and pulled up on the side of the road facing back towards the Ranger. Each of the Ranger occupants asserted that, as the Ranger passed the applicant's vehicle, the applicant had thrown a hammer at the windscreen of the Ranger and had broken it. Each of the Ranger occupants asserted that shortly afterwards they heard a sound like a bullet flying past the Ranger.

The applicant's version of the incident on 25 October 2018

1. The applicant's version of events, supported by Mr Ottaviano, was that he and Mr Ottaviano had entered the property with the intention of shooting feral pigs on it and had seen the Ranger's lights in the distance. The applicant asserted that he had closed the gate and chained it and that it was only after he had done so that he had realised that the Ranger was within the boundary of the property. The applicant estimated the Ranger was about 2 to 3 kilometres inside the property.
2. The applicant stated that when he approached to within about 150 metres of the Ranger it sped off through the crop on the property in the direction of the boundary fence. The applicant stated that he saw two men seated in the tray of the Ranger and later saw dogs in the tray. The applicant stated that the Ranger seemed to have lost its bearings and had driven in a large curve through the property and eventually headed towards the gate.
3. The applicant stated that the Ranger crashed through the gate and headed up the highway. The applicant stated that he followed the vehicle to enable Mr Ottaviano to film the vehicle and obtain its registration number.
4. The applicant acknowledged pursuing the vehicle along the road. His evidence in that regard was: The closest I got to the back of the ute on the highway was within 15 to 20 metres to the rear. The ute was being driven in the middle of the road straddling the centre line. I noticed as I approach that I was doing about 115 to 120 kph along the highway. I caught up to the ute which was doing about 90 to 100 kph which was when we got the rego number. The ute accelerated rapidly to about 130 to 140 kph and sped towards Colly Blue, Spring Ridge and Caroona. When it accelerated away I braked and slowed to turn around and go home.
5. The applicant stated that: "From the time the vehicle entered onto the highway the driver straddled the centre line and continued doing that while heading off at high speed". The applicant attached to his affidavit a photograph which appears to show the Ranger straddling the centre line of a road.
6. The applicant stated that his rifle was on the dashboard of the vehicle in its bag throughout the incident. The applicant denied throwing anything at the vehicle or making threats to shoot the occupants of the vehicle.
7. The applicant asserts, and Senior Constable Voyez' statement appears to confirm, that it was the applicant who first reported the incident to the Police and it was only subsequently that Mr M contacted the Police. The applicant asserts that, having identified through acquaintances in the district that the Ranger belonged to Mr M, he had telephoned Mr M and that Mr M made threats to him in the course of that conversation.
8. Mr M's statement appears to confirm that the applicant had contacted him before Mr M approached the Police.
9. As noted above, Mr Ottavanio's affidavit generally supported the applicant's version of events.
10. In addition to the statements of the occupants of the other vehicle and the affidavits of the applicant and Mr Ottaviano, the evidence before the Tribunal concerning the incident on 25 October 2018 included the transcript of interview with the applicant, annexed to Senior Constable Voyez' statement, and the video recorded by Mr Ottaviano.
11. The video is approximately 32 seconds in length. Although the phone on which it was recorded was not held steady, the video clearly discloses that, contrary to their statements, two of the Ranger occupants were in the tray of the Ranger, and also that, at least for a short period, the applicant pulled alongside the Ranger.
12. The video records some words being shouted while the applicant's vehicle was alongside the Ranger but the words shouted were not identifiable beyond a clear obscenity. The words did not sound like a threat to shoot.
13. At one point the sill of the passenger side window of the applicant's vehicle is visible in the video. There is nothing which would suggest that there was a gun pointed out the window.
14. In the absence of any oral evidence or cross examination of any of the authors of the statements or the deponents of affidavits, I consider the video recording and the record of interview are the most reliable and objective evidence available before the Tribunal.
15. I do not accept that the statements by Mr M, Mr F and Mr I were reliable. I reach this conclusion both by reason of the explicit, and demonstrably false, statements made by each of them that they were all seated in the cab of the Ranger, but also because it is inherently unlikely that the applicant would have been able to turn off the main road and overtake the Ranger on a side road, with enough time to pull up on the side of the main road and throw a hammer at the Ranger.
16. The respondent did not propose to make the three occupants of the Ranger who had given statements available for cross-examination on their statements. On the other hand, the applicant and Mr Ottaviano swore affidavits, and as far as has been made known to the Tribunal, would have been available for cross-examination if a hearing had been held. The respondent agreed to the matter proceeding on the papers, that is without cross-examination of the applicant or Mr Ottaviano. In the circumstances, I prefer the evidence of the applicant and Mr Ottaviano to that of the occupants of the other vehicle where they are in conflict.
17. However, I do not accept the evidence of the applicant unreservedly. The applicant stated in his affidavit that the closest he got to the back of the other vehicle on the highway was about 15 to 20 metres to the rear. If the video was taken on the highway the video clearly contradicts that evidence. Although it is not entirely clear that the video was filmed on the highway rather than in the paddock in which the confrontation commenced, the speed the vehicles are apparently travelling and the apparent presence of a road sign to one side suggest it was filmed on the highway.
18. The applicant also acknowledged in his interview with Senior Constable Voyez that he had followed the other vehicle at speeds as high as 120 kph and that at one stage he had pulled alongside the other vehicle for about 2 seconds.
19. Accordingly I find, on the balance of probabilities: 1. That the applicant, with Mr Ottaviano in his vehicle, came upon the other vehicle with four occupants, two of whom were in the tray of the vehicle, on a property on which the applicant had permission to hunt pigs and where the other vehicle and its occupants were trespassing. 2. That the applicant pursued the other vehicle which, in seeking to escape the property, broke through the gate to the property. If the windscreen of the other vehicle was broken during the incident, I conclude that that occurred when the vehicle broke through the gate. 3. That the applicant then followed the other vehicle along the road at speeds of up to 120 kph, well in excess of the speed limit, which the applicant conceded was 100 kph. 4. That at one point the applicant pulled alongside the other vehicle, driving on the wrong side of the road for a short period.
20. I am not persuaded that either the applicant, or his passenger Mr Ottaviano, handled any firearm during the incident. I am satisfied on the balance of probabilities that the gun, which the applicant did have in his vehicle, for a legitimate purpose, remained in its case throughout. I am satisfied that the applicant did not throw a hammer at the other vehicle.
21. I am also satisfied that there was no gun shot fired in the course of the incident.
22. I note that the respondent's submissions, while not explicitly acknowledging that the Ranger occupants' version of events was false, ultimately relied in submissions only upon the elements of the incident which the applicant had admitted in the record of interview with Senior Constable Voyez.

The Respondents' submissions

1. The respondents' submissions set out a number of reasons why the respondent submitted it would "be contrary to the public interest for the applicant to continue to hold his firearms licence".
2. The respondent submitted: "The applicant's behaviour during the incident on 25 October 2018 raises considerable concerns with respect to the risk that the applicant poses to the public safety, particularly as those involved in the incident had access to or were in the process of using firearms".
3. The respondent referred to a number of statements made by the applicant during his interview with Senior Constable Voyez including his acknowledgement that he had chased the Ranger for probably five or six kilometres, that he had been travelling at 120 kph, that he had driven alongside the Ranger, and that he had brought his own vehicle within two metres of the Ranger.
4. The respondent submitted: "The aggressive and dangerous driving to which the applicant had admitted, demonstrates that he took matters into his own hands in a way that posed a serious risk, not only to himself and his passengers, but those in the other vehicle".
5. The respondent submitted that the position of two of the Ranger occupants in the tray of the Ranger during the high speed pursuit "only heightened the seriousness of the applicant's behaviour".
6. The respondent also relied upon a number of other matters in submitting that the applicant's firearms licence should be revoked.
7. First, the respondent referred to three incidents in 2012: 1. The applicant was made subject to an interim apprehended violence order which resulted in the applicant's minors firearms permit being suspended. The order was later revoked and the applicant's firearms permit was reinstated. 2. The applicant was involved in a physical altercation in a McDonalds carpark in 2012. The applicant was punched in the face and dislocated his shoulder. He made a Police report but declined to press charges or seek a personal violence order. 3. The third incident, as described in the respondents' submissions, involved the applicant having "engaged in a verbal altercation with the driver and passengers in another vehicle in 2012 and subsequently caused damage to the vehicle and drove away without providing details". This incident was the subject of a COPS report in 2012. The incident resulted in the applicant being charged with an offence under the Road Transport Act of not reversing safely and fined $165.
8. The respondent submitted that: "These incidents suggest that the applicant is incapable of extracting himself from situations that result in disputes, and that his behaviour has often led to a relatively minor incident coming to the attention of Police, and action being taken. Such behaviour should satisfy the Tribunal that it is not in the public interest for the applicant to continue to hold a firearms licence in light of the risk that he poses to public safety".
9. Secondly, the respondent referred to the applicant's history of traffic infringements, which the respondent submitted was "extensive". The respondent noted that, since obtaining a drivers licence in New South Wales in 2010, the applicant had received a total of 30 traffic infringement notices, which had resulted in two demerit point suspensions and the imposition of good behaviour conditions on two occasions. The respondent noted that six of the applicant's speeding infringements had occurred in 2019 and resulted in the applicant losing his driver's licence privileges from 25 August 2020 for a period of five months (the applicant had previously surrendered his NSW driving licence and obtained a Queensland driver's licence by reason of an extended but temporary period of residence in Queensland).
10. The respondent submitted that "the applicant's overall history of traffic offences, some of them repeated, shows a disregard for public safety as well as a disregard for the regulatory scheme aimed at ensuring public safety".
11. Thirdly, the respondent relied upon the fact that in both his 2013 and 2018 applications for a firearms licence, the applicant had responded "No" to the question whether he had "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".
12. The respondent submitted that, as the applicant's minor's permit had been suspended in 2012, the applicant had provided misleading information in connection with each of those applications which was an offence under s 70 of the Firearms Act, and submitted that: "The Tribunal should be satisfied that the applicant has supplied information which was to his knowledge false or misleading in a material particular in or in connection with the application for the licence. The Tribunal is required to look at the applicant's conduct as a whole."
13. The respondent's submissions concluded: "The Tribunal is required to look at the applicant's conduct as a whole. The applicant's: involvement in a high speed car pursuit as well as verbal and physical altercations; lengthy traffic infringement record; and failure to provide accurate information on his licence applications; repeated and varied involvement in disputes; cannot result in a conclusion that there is virtually no risk."

The applicant's submissions

1. The applicant's submissions in chief largely address the issue of the events of 25 October 2018. I have made findings in this respect above. I have to a large degree accepted the applicant's submissions concerning what occurred and the applicant's conduct.
2. In reply submissions, the applicant addressed the further matters relied upon by the respondent.
3. The applicant submitted that the failure to disclose the suspension of his minor's permit in making his application for a gun licence in 2013 and 2018 was "an oversight". The applicant did not tender any evidence in support of that submission.
4. The applicant further noted that "there was no objection by the Registry to the licence being issued" in 2013 when the applicant first applied for a licence as an adult.
5. With respect to the interim apprehended violence order the applicant submitted (again without tendering evidence) that the interim apprehended violence order was withdrawn at the Children's Court without evidence being offered or any issue tried.
6. The applicant, in his affidavit, provided an explanation of the circumstances in which the interim order was made, in which he asserted that he was not in any way at fault in that matter.
7. In relation to the assault on the applicant, which the applicant reported to Police but did not wish to have any action taken, the applicant in his affidavit explained the assault as being a response to his challenging another party who was trespassing and hunting illegally on a private property.
8. The applicant also explained the incident leading to the issue of a penalty notice for not reversing a vehicle safely as arising because the applicant had challenged the driver of the other vehicle for trespassing and pig hunting without permission. The applicant asserted that it was the driver of the other vehicle that had driven into his vehicle and that the incident had occurred on private property. The applicant stated that he was 17 years old at the time and had paid the fine rather than dispute the charge.
9. In relation to the applicant's driving history, the applicant, by his reply submissions, sought to explain a number of the offences as related to rendering assistance with firefighting or responding to other emergency situations.
10. The applicant, in his reply submissions, also submitted that he had not been accorded procedural fairness in the initial decision to suspend and subsequently revoke his firearms licence, or in the internal review.
11. I do not consider that that submission warrants further consideration. As the respondent submitted, the Tribunal is not limited to a consideration of material before the original decision-maker and any failure to accord procedural fairness or other abuse of process occurring in relation to the original decision or the internal review is irrelevant to these proceedings.

Decision

1. I am not persuaded that the three incidents from 2012 relied upon by the respondent - that is the interim apprehended violence order, the assault on the applicant and the incident resulting in the applicant being charged with failing to reverse safely - or the failure of the applicant to disclose the suspension of his minor's permit in his applications for a firearms licence in 2013 and 2018 are relevant to my consideration of the question whether the applicant's firearms licence should be revoked.
2. With respect to the interim apprehended violence order, I accept, on the balance of probabilities, that the applicant did nothing to justify the imposition of the order. I note that no final order was made against the applicant.
3. The traffic conviction for failing to reverse safely does not suggest any propensity which would render the issue of a firearms licence to the applicant contrary to the interests of public safety. The applicant provided sworn testimony concerning the events leading to the conviction, on which he was not cross examined. Although the relevant COPS report included in the s 58 documents suggested that the incident occurred on a public road and that the applicant had initiated a confrontation with the driver of the other vehicle, the COPS report was entirely based upon a statement from the other driver. Although the COPS report suggested the applicant had made a statement at the time in relation to the incident and a statement had also been obtained from a witness, neither of those documents was included in the s 58 documents or otherwise tendered in evidence.
4. I also note that the other driver's version of events does not suggest that the applicant had caused any damage by reversing unsafely. The other driver in fact suggested the applicant had collided with his car while driving forward. In the circumstances I consider it would not be appropriate, particularly as the incident occurred in 2012, to draw any conclusion adverse to the applicant from that incident or the consequent conviction.
5. The third incident involved an assault upon the applicant and, in the absence of clear evidence of provocation or incitement by the applicant, which is not present in the evidence, it would be inappropriate to draw any conclusion adverse to the applicant from circumstances in which the applicant made a report to Police that he had been assaulted.
6. Although the applicant's failure to disclose the suspension of his minor's permit when applying for his firearms licence is potentially a serious offence, I note that the applicant was under 18 at the time of the suspension and that the suspension was a consequence of the issue of the interim apprehended violence order against the applicant which, as I have concluded above, was not the consequence of any inappropriate or aggressive conduct by the applicant.
7. Although the applicant did not give sworn evidence that he had overlooked the suspension when completing his firearms licence applications, I accept that that is not unlikely. In any event I consider that the applicant's failure to disclose the suspension of his minor's permit does not suggest that there is a risk to public safety from the applicant holding a firearms licence.
8. However, I have concluded that the conduct of the applicant during the incident on 25 October 2018 does establish that there is a risk to public safety in the applicant continuing to hold a firearms licence and that the decision to revoke the applicant's licence should be affirmed.
9. Although I have found that the applicant did not engage in the extreme behaviour alleged by the Ranger occupants, I have found that the applicant acted very aggressively in pursuing the Ranger and pulling alongside it at high speed on a public road. That conduct occurred in circumstances where the applicant had a rifle in his vehicle and had reasonable grounds to expect that the Ranger occupants were also in possession of firearms, as they were, in the applicant's belief, engaged in pig shooting. In such circumstances the applicant's aggressive conduct was quite inappropriate and potentially capable of escalating to the use or threatened use of firearms.
10. The possession of a firearm is a circumstance which requires a licensee to behave with the utmost discretion to avoid any confrontation which has the potential to escalate. The applicant may very well have been warranted in pursuing the Ranger to film or otherwise record its number plate so as to make a report to Police, but the unlawful shooting that he believed the Ranger occupants had been undertaking did not justify the dangerous and aggressive driving, which was demonstrated on the video and conceded by the applicant in his record of interview. Such aggressive conduct had the potential to lead to a confrontation which, when both parties were armed, had the risk of dangerous escalation.
11. The final matter relied upon by the respondent was the applicant's traffic record. There are decisions of the Tribunal and of the Administrative Decisions Tribunal which suggest that a licensee's traffic history may be a factor in determining that a firearms licence should be revoked in the interests of public safety.
12. In Tannous v Commissioner of Police [2011] NSWADT 116, the Administrative Decisions Tribunal considered the significance of traffic offences in the determination whether a firearms licence should be revoked in the interests of public safety. The Tribunal held: 32 The Applicant submits that a distinction should be drawn between traffic offences and other criminal offences in assessing his conduct. I accept that it is generally accepted that a traffic infringement would be viewed differently to a criminal conviction by a court. However, in the Applicant's case his traffic record includes driving whilst disqualified by a court, this is a more serious traffic offence than driving whilst a licence is cancelled. Even if I were to put to one side that his traffic record includes the offence of driving whilst disqualified, it is of concern to me that the Applicant, repeatedly, in close proximity in time, drove whilst not legally permitted to do so. Even after being charged with driving whilst cancelled, the Applicant drove again within a matter of hours sustaining a second charge of driving whilst cancelled. He was then, in a relatively short period of time after driving on two occasions whilst his licence was cancelled, charged and subsequently convicted with driving whilst disqualified. I consider that this course of conduct by the Applicant in relation to traffic offences does indicate an inability to appropriately and seriously consider and observe legal regulations which are imposed for public safety reasons, and further indicates a lack of responsibility for public safety. … 37 I am satisfied, when I view the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. I consider that the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety (in particular, the breaches of the requirement that drivers of motor vehicles be licensed, which is aimed at ensuring that drivers of vehicles observe traffic safety laws and are safe and competent) indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety and I consider it relevant that the Applicant has failed to comply with requirements of the firearms licensing scheme in relation to firearms storage, and that this follows on his conduct of repeatedly breaching traffic laws and regulations aimed at public safety. In recent years the Applicant has been before the courts for the breaches of regulations and laws aimed at public safety in relation to his driver's license, and has also been before the court for possessing prohibited drugs. I am satisfied that the evidence in this matter indicates a course of recent conduct by the Applicant which has shown disregard for laws which protect public safety and a lack of compliance with the law generally.
13. In Keegan-Jacques v Commissioner of Police [2017] NSWCATAD 145, the Tribunal also considered that a history of traffic offences was relevant to the determination whether a firearms licence should be revoked in the interest of public safety. The Tribunal recorded, at [57], that: 57 The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt - the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety.
14. The Tribunal concluded, at [81]: 81 The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety…
15. In both Tannous and Keegan-Jacques there were other matters that were taken into account by the respective Tribunals in reaching the conclusion that the applicants' licences should be revoked. In Tannous those matters involved breaches of the regulations relating to firearms storage. In Keegan-Jacques the Tribunal considered it relevant "that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms."
16. I do not consider that the applicant's driving history was such that it would, without more, have warranted the revocation of the applicant's licence. However, that driving history does suggest that the applicant does not have sufficient regard for the importance of compliance with laws enacted in the interests of public safety and, in conjunction with the applicant's aggressive and confrontational behaviour on 25 October 2018, constitutes a reason for concern that the possession by the applicant of a firearms licence may create a risk to the public safety.
17. Although the applicant's traffic record would not on its own have provided justification for the revocation of the applicant's licence or suggested that the applicant's holding of a firearms licence created a risk to the public, I find the extent of the applicant's record, in particular the fact that his licence privileges have recently been suspended by reason of the accumulation of demerit points, provides further confirmation that the correct and preferable decision is that the applicant's firearms licence be revoked.
18. The revocation of the applicant's firearms licence does not mean that the applicant cannot apply for a licence in future at a time when he may be able to demonstrate that he has acknowledged the risks inherent in the aggressive response he has previously demonstrated and he can show that he can be relied upon to de-escalate rather than inflame any confrontations.
19. However on the evidence before the Tribunal, I consider the correct and preferable decision is that the applicant's firearms licence be revoked.

Orders 1. The decision under review is affirmed.

Endnote

1. As Mr I, Mr F and Mr M have not been heard in these proceedings and I make adverse findings regarding their credit, I consider it appropriate not to name them in these Reasons for Decision. 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: 20 January 2021