The Applicant attended the hearing and was cross-examined. She provided an explanation for her failure to accurately respond to questions in her licence application. She agreed that she had provided information that was not accurate. However, she said that she misread the question and understood it to be asking for information about the previous 12 months. She denied that she had deliberately provided false information to avoid potential consequences of providing accurate information. She also denied that she had failed to treat the licensing process seriously.
She said that she could not recall all the details of the Mungery races incident. However, she denied that she had engaged in the conduct that led to the charges of assault and affray. She conceded that she had been found guilty of the two charges.
She said that she has lived with Mr Busutel since 2014 and was surprised to learn of the reports of his behaviour when he was younger. She said that he is not a heavy drinker, he is a good driver, and he shares parenting responsibilities for their children.
Mr Kable submitted that in the circumstances there is virtually no risk to the public if the licence is granted.
[2]
Consideration
This is a matter in which there has clearly been a history of misconduct by the Applicant. It is not in dispute that she was found guilty of the charges of assault and affray in relation to the Mungery races incident. However, it appears that in recent times she has adopted a more settled lifestyle and has held responsible work positions. There is no issue raised in regard to her present psychological condition.
I am satisfied that given the time that has passed since the Applicant's offences, she has matured and is clearly a changed person. I do not share the Respondent's concerns in regard to her character.
However, as will be apparent from the Busutel v Police decision, I do not hold the same view in regard to Mr Busutel. This creates a difficulty given the Applicant's domestic arrangements and the intention that she and Mr Busutel have to establish a joint vermin control business and the intended use of firearms in that business.
In the existing and planned circumstances, it is likely that if granted a firearms licence, the Applicant would use firearms in association with Mr Busutel. Given my findings in the Busutel v Police decision, that arrangement would be contrary to the public interest.
I raised with the parties the question of whether a licence could be granted to the Applicant subject to conditions related to the storage of firearms that required storage in a way that Mr Busutel could not gain access to the firearms. The Respondent opposed that as an option because of the living and proposed work arrangements between the Applicant and Mr Busutel.
I agree with the Respondent that it would be contrary to the public interest for the Applicant to be granted a firearms licence in the circumstances that currently exist. Accordingly, it is my view that the decision to refuse to grant the licence application should be affirmed.
If the Applicant's circumstances change in such a way to remove the basis for the Respondent's concerns, a different result might follow if she reapplies at some time in the future.
In the present circumstances, it is my view that it is too early for me to be satisfied that there is virtually no risk to the public if the licence is granted. I am satisfied that it is not in the public interest for the Applicant to have a firearms licence at this time.
[3]
Decision
1. 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: 16 December 2022
This is an application for review of a decision made by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") to refuse an application by Ms Frances Riley ("the Applicant") for a Category AB firearms licence under the Firearms Act 1996 ("the Firearms Act"). The decision was deemed to have been affirmed because the Respondent had failed to determine the Applicant's internal review application within 21 days. The Applicant has applied to this Tribunal for external review.
The Commissioner's view is that the correct and preferable decision is to refuse the Applicant's application because the Applicant:
1. has a notable criminal record which includes findings of guilt for assault and affray;
2. provided the Firearms Registry with false and misleading information which demonstrates a disregard for the Firearms Act including, in particular, the provisions regulating the supply of information under the Firearms Act and the integrity and effectiveness of the integrated licensing and registration scheme established under the Firearms Act; and
3. lives with Nathan Busutel which and, as a result, the Applicant's living and domestic circumstances give rise to a concern that the Applicant may not personally exercise continuous and responsible control over firearms. In particular, there are concerns that Mr Busutel could access and use those firearms.
My decision in relation to an application for a firearms licence by Mr Busutel is at Busutel v Commissioner of Police, NSW Police Force [2022] NSWCATAD 384 ("the Busutel v Police decision").
The Commissioner submits that it would be contrary to the public interest for the Applicant to hold a firearms licence.
The Tribunal's Approach
In the Busutel v Police decision I discussed the approach taken by the Tribunal in reviewing the Respondent's decision, the relevant legislation and relevant case law. I will not repeat that discussion here.
It is clear that the regime in relation to the firearms licensing is concerned with protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.
In these proceedings, the Tribunal performs the role of the Commissioner.
The Tribunal must be satisfied that there is virtually no risk to the public: Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Risk to the public includes risk to the Applicant herself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.
In this matter the Respondent also contends that the grant of a licence to the Applicant would create unacceptable risks to public safety given the domestic relationship between the Applicant and Mr Busutel. Section 11(4)(a) of the Firearms Act provides:
… a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of -
(a) the applicant's way of living or domestic circumstances
…
Living and domestic circumstances
As noted, the Applicant lives with Mr Busutel. In the Busutel v Police decision I found that it is not in the public interest for Mr Busutel to have a firearms licence. The Respondent submits that given the breadth of the Commissioner's discretion and the overriding object of public safety, there is no basis for differentiating between conduct of an applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. The fact that an individual may not have committed any conduct or omission that would jeopardise public safety, and that they may be inconvenienced by a licensing decision, is subordinate to the need to ensure public safety.
The Respondent cited the decision in Tolley v Commissioner of Police, New South Wales Police Service [2006] NSWADT 149 in which Judicial Member Fitzgerald stated at paragraph [31]:
Given the breadth of the Commissioner's discretion and the overriding object of public safety there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence.
That view has been considered in numerous cases before this Tribunal. The circumstances of the particular relationship between an applicant and the person who's conduct may impact on public safety must be taken into account. See for example the recent decision in Meggit v Commissioner of Police [2022] NSWCATAD 353. At paragraph [28] Senior Member Griffin stated:
The Respondent submitted that the Applicant may not personally exercise continuous and responsible control over firearms because of her way of living and domestic circumstances. This submission principally refers to the Respondent's concerns in relation to Mr Maguire. 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 overriding object of public safety, there is no basis for differentiating between conduct of the Applicant themselves and conduct of another which may impact on public safety in the context of a firearms licence. While there was no evidence of any history of domestic violence between the Applicant and Mr Maguire, Mr Maguire is known to police for other reasons. Based on that knowledge the Respondent submits, "The prospect of Mr Maguire having access to firearms provides reasonable cause to believe that Ms Meggitt may not exercise continuous and responsible control over firearms". In my view, that submission is an example of the logical fallacy post hoc ergo propter hoc, a Latin phrase meaning "after this, therefore because of this" and I do not accept that a prospect can provide a reasonable cause for that belief.
The Respondent accepts that in order for the Tribunal, to have "reasonable cause" to believe that an individual may not personally exercise continuous and responsible control over firearms, there must be more than mere suspicion or conjecture.
In the Respondent's submission, in the circumstances of this matter there is much more than mere suspicion or conjecture, there is in fact good cause, to believe that the Applicant may not personally exercise continuous and responsible control over firearms. It appears from the report from Mr Kruger-Davis, the Applicant's psychologist, that the Applicant and Mr Butusel intend to establish a pest and vermin control business at Narromine, and they sought firearms licences to be able to extend the range of services that the business could provide.
The Respondent submitted that Mr Busutel cannot be trusted to have access to and use firearms without serious risks to public safety. In particular the Respondent says that Mr Busutel has:
1. a lengthy history of domestic violence;
2. a lengthy history of traffic infringements that demonstrate a disregard for other laws intended to ensure public safety; and
3. provided false or misleading information in relation to a firearms licence application and that this demonstrates that he:
1. is prepared to put his personal interests above the public interest;
2. cannot be trusted to comply with firearms law; and
3. is not a reformed character nor changed person despite his better criminal and traffic record in more recent years.
Mr Busutel lives, and is in a relationship, with the Applicant. In the Respondent's submission, he could readily take advantage of these circumstances in order to access any firearms to which the Applicant had access.
The Respondent submits that public safety is to be given paramount consideration and any discretion to grant a licence should be exercised in a way that promotes the responsible use of firearms. In the circumstances of this matter the Respondent submits that it cannot be in the public interest for the Applicant to have a firearms licence given the risk that Mr Busutel would or could have access to her firearms.