Power v Commissioner of Police [2023] NSWCATAD 44 | Case summary

Submissions

In making the case that the Commissioner's decision to refuse the Applicant's application for a Category A firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner drew the Tribunal's attention to the Applicant's conduct which such conduct being categorised into the Applicant's domestic history, the Applicant's traffic record and allegations related to events occurring on 23 July 2022 which are described below.
Between March 1994 to October 1998, the Applicant was charged with exceeding the speed limit while driving a vehicle on two occasions and disobeying traffic lights on one occasion.
On 31 January 1998, the police were called by an anonymous informant to the Applicant's premises following shouting and verbal arguments with the Applicant's then wife. The Applicant's then wife wished that no further action be taken by the police other than to standby whilst she left the premises to stay with friends. While the Applicant's then wife denied that the argument had been violent, in a subsequent report, following the end of the marriage and in the context of allegations of threatening behaviour by the Applicant towards the Applicant's wife, it reads "the victim stated to police the defendant had assaulted her whilst they were married".
On 26 June 2000, at 9.30pm, the Applicant was driving while intoxicated. According to the police report, the Defendant failed to give-way at an intersection and collided with another vehicle causing him to lose control and collide with a shop front window. The Applicant submitted to a breath analysis and returned a high range prescribed concentration of alcohol being 0.180 grams of alcohol per 100ml of blood. The Applicant's unrestricted driver's licence was suspended until 9 October 2000. The Applicant was charged with drink driving with high range reading of alcohol. The charge was proven but dismissed with the imposition of good behaviour bonds. The Applicant was ordered to attend a traffic offenders programme.
On 14 December 2004, a notification was made to the Department of Children's Services (DOCS) in respect of the Applicant's step-son after he attended school with swelling and bruising above his right eye. At the time, the Applicant's step-son was seven years old. According to the police report: 1. the Applicant had smacked the child with an open palm for leaving a gate key inside the house instead of on a chain on the gate; and 2. the Applicant admitted to striking the child with an open palm.
DOCS determined this was an isolated incident, however, as noted in the police report "the documentation reveals a previous notification on the family." It is not clear on the evidence before me what this previous notification was.
On 20 June 2005, the Applicant's neighbours called the police. According to the police report, the Applicant and his then wife had been arguing because the Applicant had been gambling and had arrived home intoxicated. The couple were due to visit with the Applicant's in-laws and the Applicant intended to drive while intoxicated with his 12-month-old daughter in the car. The Applicant's then wife did not want the Applicant to drive. The Applicant's then wife indicated to the police that she did not want an AVO applied for.
On 24 August 2007, the police were again called to the Applicant's home. At this time, the Applicant's step-son was ten years old. The police report states: "It is alleged that [t]he [Applicant] has a serious alcohol and gambling problem. About 12:00 PM on the 23rd of August 2007 the [Applicant] went to the pub... He spent the afternoon there until he was picked up by his wife and children. The [Applicant] started to chastise his stepson ... in relation to stealing money. At this time the [Applicant] was a passenger in the front and [his step-son] was in the rear right side. The [Applicant] leant over to the rear and punched [his step-son] to his chest area. This caused [his step-son] to become winded and he felt like he wanted to vomit. The [Applicant's step-son] leant over and was then punched by the [Applicant] to the right side of his back causing redness and a bruise. The [Applicant's step-son] started to cry. The [Applicant] continued to scream at [his step-son]. The [boy's] mother said to the accused "This is not the time and place while you have been drinking." At the home at... the [Applicant] continued to yell at [his step-son]. He went to get the key to the garage roller door and was tripped by the [Applicant]. This caused the victim to fall to the ground. The [Applicant] said to the victim, "Sit on the chair." This was a chair in the garage. The [Applicant's step-son] sat on the chair and the [Applicant] attempted to tip him over backwards. The [Applicant's step-son] did not fall off and came forward again. The [Applicant] said to [his step-son], "Go away." The [Applicant's step-son] got off the chair and attempted to walk out the garage into the house. The [Applicant] grabbed the victims left thumb bending it back towards the hand. The [Applicant's step-son] states that he felt a crack. The [Applicant's step-son] went upstairs to his mother crying. At this time she had already called police having heard what was going on downstairs. The Applicant's step-son went to bed until police arrival. On police arrival police spoke to the Applicant's step-son. He was crying and extremely upset. Police saw that he had a red mark in the centre of his chest consistent with being punched. The Applicant's step-son had a red mark to the left lower waist area and a bruise to the upper right of that. Also consistent with being punched. The victim had a graze to the right leg, he had a small cut to the left thumb. Subsequently the accused was placed under arrest… The accused is a registered gun owner. All guns were seized apart from three [which could not be initially located but were subsequently located]."
On 29 August 2007, an interim AVO was issued as against the Applicant with respect to his step-son.
On 13 October 2008, the Applicant's Category AB Firearms Licence was suspended. That suspension was lifted on 11 November 2008.
Between April 2004 to September 2013, the Applicant was charged with using a mobile phone while driving on three occasions and in February 2009, the Applicant was again charged with speeding.
On 17 July 2010, the Applicant again came to the adverse attention of the police. By this time, the Applicant had separated from his former wife and had begun a new relationship although that relationship has now ended. According to the police report: 1. After an evening of drinking, the couple started to walk to a local McDonalds. On the way there, the Applicant's partner became angry and walked off. The Applicant also became angry and called her a "slut". The Applicant's partner attempted to call a taxi to leave. The Applicant then attempted to take the phone off his partner by pushing her up against an office building. In the struggle, the Applicant's partner slipped over and the Applicant got on top of her bending her thumb back in a further attempt to take her phone which he managed to do. 2. The Applicant's partner than went to a nearby payphone but the person she was attempting to contact did not answer. After exiting the payphone, the Applicant approached her again. The Applicant's partner asked for her phone back and she was told by the Applicant that he did not have it but he pulled out two phones from his pockets that belonged to him and handed them to her. The Applicant's partner continued walking to McDonalds and again tried to make a phone call. The Applicant then tried to take his phones back from his partner. The Applicant's partner returned one of the phones but indicated that she would return the other when he returned her phone to her. The Applicant's partner started to walk away. The Applicant grabbed her by the side of her jumper which the Applicant removed from her. The Applicant then grabbed her by the hair and pulled her back towards him as she tried to walk away. The Applicant's partner fell, and the Applicant got on top of her and held her down. The Applicant's partner was hitting the Applicant with her handbag. 3. A staff member of McDonalds ran to assist the Applicant's partner along with several other customers. The McDonalds staff took the Applicant's partner into the manager's office for refuge and locked the store. The Applicant was told that the store was closed and locked. The Applicant removed his shirt to cover his fist and tried to break through the glass. 4. The police attended and spoke with the Applicant's partner and staff. The Applicant was arrested. On 20 July 2010, the Applicant attended the police station and surrendered his registered firearms as per his bail conditions. Twenty-two firearms were seized. 5. The Applicant was convicted of the offence of common assault and received a section 9 bond for 9 months
On 26 July 2010 the Applicant's Category AB Firearms Licence was again suspended.
On 10 September 2010, an AVO was issued as against the Applicant with respect to the Applicant's then partner.
On 28 September 2010, the Applicant's Category Firearm Licence was revoked.
In February 2012, the Applicant's former wife provided an additional statement to the police regarding alleged threats of violence made by the Applicant against her. In the context of a custody dispute with respect to their daughter, the Applicant called his former wife and said the following words according to the police report: The Applicant: "I'm going to put a pistol to your head" The Applicant's former wife: "Are you threatening me?" The Applicant: "No, I'm going to get someone else to do it."
The Applicant's former wife hung up and the Applicant attempted to call her a further two times but the Applicant's former wife did not answer the phone. The police took the Applicant's former wife's statement and applied for an AVO as against the Applicant which was issued on 15 March 2012.
In September 2015 to March 2018, the Applicant was charged with towing a vehicle with insecure or an overhanging load, another charge of drink driving and a separate charge of speeding. In respect of the charge related to the insecure load and drink driving, both were proven but dismissed again with the imposition of good behaviour bonds.
On 23 July 2022, police received a report in relation to, what appeared to be gun shots being fired from the vicinity of the Applicant's property in the direction of a professional kangaroo shooter who had been hired by a neighbour of the Applicant. Consistent with the noise and manner of shooting, the kangaroo shooter specifically identified a pump action shot gun as the firearm that was being used.
At the time of this event, the Applicant and his neighbour were in a dispute regarding boundaries. According to the police report, they were informed that the Applicant was not happy with his neighbour because of this dispute and the shooting was a retaliation as against his neighbour. There is a reference in the police report of this conduct occurring in the past. While this was the Applicant's neighbour's suspicion, the shots were fired at night-time and at a distance so the kangaroo shooter could not see the face of the person shooting.
Although the shots were fired from the vicinity of the Applicant's property and the Applicant was the only person home at the time of the shooting - the Applicant denied shooting a firearm that evening indicating that he could not access the firearms located in his home and otherwise, gave evidence that it was not uncommon for poachers to trespass onto the property which he suspected was the explanation for the shots fired.
Police arrived at the residence of the Applicant and noted a strong scent of alcohol coming from the Applicant. Police questioned the Applicant given that the Applicant did not have a firearms licence and no one else was at the residence at that time. The Applicant informed the police that firearms were stored at his home, but the firearms belonged to his partner and daughter who were not present and the Applicant did not have access the firearms which were locked in safes. Following the investigation of the police, the police were satisfied that both the Applicant's partner and daughter were responsible licence holders.
The Applicant was cross-examined as was his partner, Ms Kristena Graham. In respect of the Applicant's cross-examination: 1. The Applicant denied any wrong-doing with respect to his step-son who he described as a difficult child and the Applicant's actions were in an effort to discipline him. In his statement, he admits that his recollection of the events are unclear but that he was probably "chastising him". 2. In respect of the evening of 17 July 2010, while in his statement he accepted that his actions were wrong, during cross-examination he alleged that his then partner had become violent and that his actions were, at least in part, self-defence while simultaneously characterising the events as a couple having a disagreement. 3. While the Applicant accepted that he drank alcohol and admitted that when he was younger he was a moderate to heavy drinker, he denied having a drinking problem or drinking to excess. 4. He further denied threatening his ex-wife which he said was a "total fabrication" but accepted that the relationship with her had been strained given a custody dispute with respect to his daughter.
Consistent with the body worn footage of the night of 23 July 2022, the Applicant denied to police that the guns that were at his residence included a pump-action shot gun. This allegation was repeated to this Tribunal during the hearing and specifically during the Applicant's oral opening submissions.
Ms Kristena Graham, was also cross-examined. Ms Graham: 1. described the legitimate purpose for the Applicant to be licensed. She explained that she was not always home given her work commitments and if she is away when a sheep or cow is attacked and injured, it is important the animal may be euthanised humanly and quickly. Currently, as the Applicant is unlicenced, they have to await Ms Graham's return (or the Applicant's daughter). Additionally, Ms Graham has an aversion to having to euthanise animals which she explained most likely arises from her work as a palliative care care nurse; 2. indicated that the Applicant was not a "big drinker"; 3. denied giving the Applicant the combination to the safe containing the firearms (which was a safe with a combination lock) and that she also believed that the Applicant did not have access to the Applicant's daughter's firearms' safe; 4. stated that during their 11 year relationship there has never been any domestic violence, intimidation or verbal threats of any kind; 5. described poachers illegally coming onto their property as common; and 6. significantly, Ms Graham informed the Tribunal that the collection of firearms kept at her and the Applicant's home included a pump-action shot gun.
In respect of the oral evidence, I find that Ms Graham was an honest witness who did her best to be accurate and to assist the Tribunal.
Conversely, I find that the Applicant's evidence, which was extensively challenged by the Respondent, was contradictory and unpersuasive. In this respect: 1. the Applicant's written statement, in which he accepted that his behaviour with respect to the events of 18 July 2010 was "not acceptable", is inconsistent with the position he took during cross-examination. During cross-examination, he sought to justify his actions as self-defence with refence to his then partner using her handbag to defend herself. However, that was in the context of the Applicant grabbing her by the hair and pulling her back towards him as she tried to walk away; and 2. his denials to both the police and to this Tribunal that the collection of firearms at his property included a pump action shot gun in circumstances in which Ms Graham confirmed that a pump action shot gun was indeed part of that collection.
As such, I do not accept the Applicant's evidence unless it is consistent with contemporaneous documentary evidence or otherwise, consistent with the evidence of Ms Graham.
The Commissioner submits that the decision to revoke the Applicant's firearms licence should be affirmed, because the Applicant's continued use and possession of firearms would be against the public interest and it would be an unacceptable risk to public safety. In support of this the Commissioner submits that 1. The Applicant's record of interactions with the police reveals a concerning tendency towards violence and threatening behaviour; 2. The Applicant's domestic history shows a lack of self-control on the part of the Applicant, and this poses a risk to public safety were he to be authorised to use and possess firearms; and 3. The Applicant's traffic record shows a disregard for public safety, including his own and for the law.
In respect of the events of 23 July 2022, the Respondent urges the Tribunal to conclude that on the balance of probabilities, the Applicant was using firearms without a licence on and doing so in a potentially threatening and life endangering manner.
In conclusion, the Respondent submits that it cannot be said that the Applicant has sufficient moral integrity and rectitude of character as to permit him to be safely accredited. Nor could it be said that there is virtually no risk to public safety if the firearms licence application were to be granted.
Alternatively, the Applicant submits that: 1. weight should be given to the fact that it has been over 12 years since the Applicant was charged and convicted, by a plea of guilty, to common assault on 10 September 2010. 2. there has only been one police charge in that period, being a charge of driving with the low range concentration of alcohol where a conviction was not recorded. 3. there have not been any reports of domestic violence since 2012 which is also supported by the evidence of the Applicant's current partner as well as confirming her opinion that the Applicant does not believe him to be a big drinker. In closing submissions, the Applicant's representative contended that Ms Graham presented as an honest and open witness. 4. there is no evidence at all to confirm that it was the Applicant who fired shots on the evening of 23 July 2022.
In conclusion, the Applicant submits: 1. there is a genuine need for the Applicant to be licenced 2. the Applicant has displayed, in at least the past ten years, 1. conduct that is worthy of him being granted a firearms licence as sought; and 2. there are no incidents that would give cause for concern in respect to public safety.

Consideration

The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives 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 choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Considerations may go beyond the character of the Applicant and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
In respect of considering the underlying principles of the Act which emphasise the need to ensure public safety, the Commissioner referred to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ("Ward") in the context of submitting that the appropriate test in the circumstances of this case is that I must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm. However, since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests.
It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.
Rather, as stated in Webb at [32] when considering the question of public safety: "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".
In applying these principles in determining the public interest, I accept as a preliminary issue that the Applicant's interest in shooting is a legitimate one given the need to eradicate vermin on the property at which he resides in circumstances where his partner (who is licensed) is not always home given her work commitments.
However, as stated in Saxby v Commissioner of Police [2021] NSWCATAD 275 at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include 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]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
Accordingly, the Applicant's genuine reason for holding a firearms licence cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm".
Consistent with the submissions of the Commissioner, I find that: 1. the Applicant's record reveals a concerning tendency towards violence and threatening behaviour; 2. the Applicant's domestic history shows a lack of self-control on the part of the Applicant, and this poses a risk to public safety were he to be authorised to use and possess firearms. This conduct highlights the Applicant's lack of ability to exercise good judgment when confronted with a frustrating circumstance or a situation of conflict; and 3. the Applicant's traffic record shows a disregard for public safety, including his own and for the law.
While those conclusions are sufficient to find that it is not in the public interest to issue the Applicant with a firearms licence, my findings with respect to the Applicant's credibility in respect of these proceedings also sit uneasily with the contentions of the Applicant. Specifically, and with respect to the events of 23 July 2022, the Respondent urged the Tribunal to conclude that on the balance of probabilities, the Applicant was using firearms without a licence on and doing so in a potentially threatening and life endangering manner. The evidence is insufficient to make a positive finding in this respect given my acceptance of Ms Graham's evidence supporting that individuals often trespass on the property to illegally hunt - however, Ms Graham also informed the Tribunal that the collection of firearms at the Applicant's residence included a pump action shot gun which I accept.
As I accept Ms Graham's evidence in this respect, the Applicant's statement to the police on 23 July 2022 and to this Tribunal in alleging that the firearms stored at his residence did not include a pump-action shot gun, was untrue and a basis to question the Applicant's honesty and credibility. It would be unlikely that it would be in the public interest that a person who provides false or misleading information in these circumstances, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240.
The licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
The objects and principles of the Act state that the possession of firearms is a privilege and inherent in the requirements is that persons who have access to firearms must act responsibly. Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. The principal issue then is whether there is a risk to the safety of the public if the Applicant is granted the licence.
As has been frequently noted, the Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. The Commissioner argues that the Tribunal could not be satisfied that the Applicant does not present a danger to public safety and, accordingly, it is not in the public interest for him to hold a firearms licence.
I agree with that view. I am of the view that an unreasonable risk to public safety would be created if the Applicant was authorised to possess and use a firearm: section 11(7) of the Act because there is a real risk that the Applicant's attitude towards his obligations, as evidenced by his conduct, are inconsistent with the objects of the Act and the conditions of his licence. Even if I was not so satisfied, I further find that there would be risk to the public if the Applicant were in possession of a firearm at a time when he was confronted with frustrating circumstances.
That being the case, it is my view that it is contrary to the public interest that the Applicant holds a firearm licence.
It follows in my view that the correct and preferable decision is to refuse the Applicant's firearms licence.
Accordingly, I affirm the Commissioner's decision.

Power v Commissioner of Police

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Judgment (9 paragraphs)

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Cases Cited (5)