Slager v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-06-07

rivate pursuant to s 49 is not to be released to either the applicant or to the public.

REASONS FOR DECISION

On 9 August 2023 Mark Slager applied to the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (Firearms Act) for a category AB firearms licence. The application was refused on 20 November 2023. Mr Slager applied for an internal review of the decision and on 23 January 2024 the Commissioner affirmed the original decision. Mr Slager then sought review by the Tribunal of the decision to refuse his application for a firearms licence.
The Commissioner submits that Mr Slager is a not a fit and proper person to be issued with a firearms licence and it is also not in the public interest for him to be issued with the licence. The Commissioner's reasons for so submitting primarily relate to Mr Slager's use of and involvement in the cultivation of cannabis.
Mr Slager acknowledges his past use of cannabis and criminal history and states that he needs the licence to enable him protect livestock on his rural property. He also states he is not violent and poses no risk to the public. He denies involvement in the cultivation of cannabis.

The application for review

The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to refuse a licence.
In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NCAT 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 is to properly consider all relevant materials and ignore all irrelevant matters: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [82]. However, the Tribunal is required to base its findings of fact on "logically probative material": Meacham at [83] referring to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68 and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. There is no onus proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [34].

Evidence before the Tribunal

The Commissioner relied on: 1. the documents lodged pursuant to s 58 of the ADR Act; 2. a bundle of documents lodged with the Tribunal on a confidential basis; and 3. open and confidential submissions.
Mr Slager relied upon: 1. a bundle of evidence and submissions filed on 19 March 2024; and 2. material filed on 4 June 2024 in reply to the Commissioner's submissions.
Mr Slager gave evidence at the hearing and both he and the Commissioner made further oral submissions at the hearing. Confidentiality orders under s 64 of the NCAT Act have been made in relation to the confidential material filed by the Commissioner. That material was referred to in a confidential session during the hearing at which Mr Slager was not present.

The relevant law

Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community's interests which take precedence over the private interests of an individual: Rial v Commissioner of Police, NSW Police Force [2023] NSWCATAP 162 at [30]; Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
Section 3 also provides that public safety is improved by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage and use of firearms. Furthermore, the Act provides for strict registration requirements and a ban on prohibited firearms.
The Commissioner is given a broad power to refuse licences, including if the applicant is not a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace and/or if it is not in the public interest for the person to hold the licence: s 11 Firearms Act. The Tribunal, in determining applications such as this matter is required to exercise its discretion in a manner that promotes the principles and objects of the Firearms Act: Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
It has been said that in considering matters under the Firearms Act public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218; Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46]. The interest of an applicant in obtaining or retaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
The Commissioner submits that the licence should be refused as Mr Slager is not a fit and proper person to hold a licence and it is not in the public interest for him to hold that licence.

Fit and proper

It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
The determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder: Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 at [25]. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184 at [40].
Furthermore, in the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an applicant "is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace": Commissioner of Police v EMB [2021] NSWCATAP 63 at [45].

The public interest

What is meant by the term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681: "The purpose of the reference to 'public interest' is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration."
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the "public interest" is an inherently broad concept providing the decision maker with the ability to have regard to a wide range of factors in exercising the discretion to refuse or revoke a firearms licence or permit. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
The expression is to be considered in context, informed by the underlying principles and objectives of the Firearms Act, and having regard to the interests of the whole community: Commissioner of Police v EMB [2021] NSWCATAP 63 at [60].
As noted above, s 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. In Ward v Commissioner of Police [2000] NSWADT 28 at [27-28] the Tribunal said that in terms of public safety: "27…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 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. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk."
That case dealt with whether the applicant was a "fit and proper person" to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at [130] - [134].
The question of risk is not, however, to be approached in an absolute or mechanistic way, 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]; Laing v Commissioner of Police, NSW Police Force [2017] NSWCATAD 315 at [62]-[64]. The question is whether there is in all the circumstances a real and appreciable risk to the public: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117 at [74]; Kopco v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 124 at [58].

Background

In 1987 and 1992 Mr Slager was found guilty on drug possession charges. These offences were relatively minor and I note Mr Slager was very young at the time. The Commissioner particularly refers to offences in 2008 and 2010 which she submits go to the fitness of Mr Slager to hold a firearms licence. Various police and court records in relation to these offence were provided to the Tribunal.

April 2008 - possession and cultivation of cannabis

On 30 April 2008 police executed a search warrant at Mr Slager's property. The property comprises three contiguous lots - lots 14, 15 and 24 - and is owned outright by Mr Slager who runs cattle on the property. At the time the warrant was executed Mr Slager was in Sydney as he was having a hip replacement.
At the time of the search found two people, Wayne Motbey and Andrea Clark, were occupying the house on lot 14. Mr Motbey told police that he and Ms Clark were from Lennox Head and had been staying at the house for two or three days. Police found a cannabis plant hanging in the kitchen pantry to dry and 13 cannabis plants growing in a glass cabinet on the back verandah of the house. Police also found plastic bags containing cannabis leaf and cannabis seeds in the pantry and in a room off the kitchen. A further search located 997.8 grams of cannabis leaf and stem under the bed in a bedroom off the living room. This was later found to be mostly stem and had a leaf weight of 199.56 grams. Mr Motbey and Ms Clark indicated Mr Slager owned the drugs.
Police also located a .22 calibre rifle with a scope on a boat in the garage near the house. A bag of ammunition was found with the rifle. Mr Motbey indicated Mr Slager owned the gun and that Mr Slager was not licenced to do so.
Earlier in the day during the same search police found an elaborate cannabis drying shed and four men inside the shed who were subsequently arrested. Police also located over 100kg of dried cannabis leaf in the shed along with equipment used for the drying, processing and packing of cannabis leaf for supply.
Mr Slager admitted to cultivating the cannabis plants found at the house and said that the cannabis leaf and seeds also found there belonged to him. He told police that the cannabis was for his own personal use to manage pain.
In relation to the drying shed and cannabis found on lot 24, Mr Slager denied any knowledge or involvement in the drying shed. He told police that he had not been to the shed on lot 24 since around Christmas 2007 and was not aware that there were four males living in his shed drying large quantities of cannabis leaf. Mr Slager states that he accesses his property from a different road to that located near the shed on lot 24 and, in fact, rarely uses that access point. A map provided by him shows the shed on lot 24 to be accessible from a different road to other parts of the property on lots 14 and 15.
Mr Slager also denied ownership or possession of the .22 calibre rifle.
Mr Slager was later charged and convicted of possession and cultivation of a prohibited drug offences in relation to the cannabis found at the house on lot 14. He was fined $700 in relation to the possession conviction and sentenced to a two year supervised bond in relation to the cultivation conviction.

April 2010 - possession and cultivation of cannabis

On 9 April 2010 police executed another search warrant at Mr Slager's property. Police found:

approximately 6.5 kg of cannabis drying in a shed near the house;
710 grams of dried cannabis in three shopping bags the main bedroom and 10 grams of dried cannabis in a tobacco packet in the pantry;
10 small cannabis plants in pots at the rear of the house; and
3 small cannabis plants in small pots in the front yard.

The total weight of the cannabis seized was approximately 7.22 kg with an approximate street value of $144,000. A subsequent Polair search of the entire property of 750 acres found no other crops or drugs.
Mr Slager was later convicted of (a) cultivate a prohibited plant, (b) supply a prohibited drug and (c) possess prohibited drug. All offences were under the Drug Misuse and Trafficking Act 1985. He was initially sentenced to a period of imprisonment in relation to each conviction and appealed his sentence. Following the appeal his sentence was varied and in respect of (a) he was sentenced to three months imprisonment; in respect of (b) the sentence was 18 months imprisonment (with three months non-parole); and in respect of (c) the conviction was confirmed but no sentence imposed.

Commissioner's evidence

The Commissioner primarily relies upon the evidence in the s 58 material concerning Mr Slager's criminal history. This is supplemented by further evidence provided to the Tribunal on a confidential basis. That evidence is set out in the following paragraphs.
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Mr Slager's evidence

Mr Slager acknowledges his past criminal history but states there was a medical justification for his use of cannabis. He states that he suffered a serious accident as a 9 year old child which led to an above elbow amputation of his right arm and ongoing hip problems. He had several surgeries and has had ongoing pain since the injury.
Mr Slager had a left hip replacement in 2007 and a right hip replacement in 2008. Following the right hip replacement he had ongoing pain despite being prescribed Oxycontin. He states he continued using cannabis as it gave him pain relief without the drowsiness of Oxycontin. He also did not want to take Oxycontin because of the risk of having an accident while driving his three sons to school each day.
Mr Slager states that the 2008 and 2010 quantities of cannabis found by police at his home were for his own personal use to manage his ongoing pain. He smoked cannabis in the mornings and evening which was effective in reducing his pain. At the hearing Mr Slager stated that he only smoked cannabis in the morning after he had taken his children to school. While the quantity of cannabis found at his property in 2010 was deemed a commercial quantity, he maintains it was for his personal use. He states that he has not used cannabis since his 2010 conviction and that he has never sold or given away cannabis that he had grown.
Mr Slager states that he was completely unaware that the shed on Lot 24 was being used to cultivate cannabis in 2008. He did not see any lights on in the shed and only found out about this when police spoke to him while he was in hospital. He understands that a number of people were charged with offences but he did not know them. He states that the shed is currently used for storage and that since 2010 he has not seen cannabis plants or people in the shed. He also states that no-one has ever approached him to use his property to grow cannabis .
Mr Slager points out that no evidence has been found that he engages in the commercial cultivation of cannabis. He also states that he does not associate with anybody who uses or is involved in the supply of cannabis.
Mr Slager states that he is not a risk to the public. He states that, having served the term of imprisonment imposed by the courts and been excluded from applying for a firearms licence for 10 years, he should not be further penalised.
The Commissioner does not dispute that, as a primary producer Mr Slager has a genuine need to possess firearms to control pest animals such as feral pigs and wild dogs. Mr Slager states that it is not practical nor realistic to ask neighbouring property owners or other licence holders to undertake pest control for him. While one of his sons stores firearms at the property, he lives in Scone and does not return to the property every day.
Mr Slager also states that his property is surrounded by large areas of natural bushland and two national parks. He refers to the Regional Strategic Pest Animal Management Plan for the area issued by the NSW Government which places an onus on private landholders to assist in reducing wild dog and feral pig populations.
Mr Slager has provided references from Margaret Yarnold, Oliver Yarnold, Alan Scrivener and Morgene Browne. All state they have known Mr Slager for many years and speak of his need for firearms to control feral animals and protect his livestock. All speak highly of his character. One referee, Morgene Browne refers to Mr Slager's past medical use of cannabis but states that Mr Slager has not used cannabis during the time they have known each other (about 15 years).
Mr Slager was questioned at the hearing about the unregistered firearm found at his property during the 2008 search. Mr Slager had told police at the time that he thought a neighbour might have brought the firearm over but at the hearing said the firearm belonged to Mr Motbey. He said that Mr Motbey tried to pin ownership of the firearm on him.

Consideration

The Commissioner acknowledges that Mr Slager's convictions are more than 10 years old but submits that his offences should be considered seriously and carefully in the context of firearms licensing. I agree with the submissions of the Commissioner that the use of prohibited drugs is an inherent risk to the safety of the user, in addition to the threats to public safety caused by those supplying prohibited substances: see Firmin v Commissioner of Police, NSW Police Force [2022] NSWCATAD 326 at [50].
Of concern is the fact that Mr Slager was convicted of a supply offence due to the quantity of cannabis found in his possession. Mr Slager has insisted that he only ever grew cannabis for his own personal use but has failed to provide any adequate explanation for why he was in possession of such a large quantity, particularly as his evidence is that he smoked about three joints a day. Also of concern is that Mr Slager continued to use cannabis particularly after 2008 knowing full well that it was illegal to do so. I accept the evidence provided by Mr Slager supports the medical use of cannabis in certain circumstances to control pain, but his use was not under medical supervision and was illegal.
Mr Slager refers to several cases decided by the Tribunal where an applicant has been granted a firearm licence where he believes the prior offending of the person was far more serious than his own. He notes the comments made by the Tribunal in Romanos v Commissioner of Police [2019] NSWCATAD at [47] that "licence holders are not require to have led exemplary lives." That is certainly true, but the nature and history of offending is a relevant matter.
Mr Slager refers to the case of Grant v Commissioner of Police [2020] NSWCATAD 158. Mr Grant lived in a rural location and used his firearms licence for hunting pigs and eradicating feral animals on his own and other people's properties. In January 2019, Police found cannabis growing at Mr Grant's property. Mr Grant pleaded guilty to the offence of "Cultivate prohibited plant - small quantity" under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. The Local Court found the offence proven, without conviction and Mr Grant entered into a conditional release order for a period of two years. The Tribunal was not satisfied that in all the circumstances of that case, including the cannabis conviction, that Mr Grant was not a fit and proper person to hold a firearms licence.
As the Commissioner points out, the Tribunal was so persuaded by Mr Grant's contrition for the offence, his plea of guilty at the earliest opportunity, his character references, stable relationship and employment and support of his family: at [76] and [86]. While some of those matters may be present in Mr Slager's case, he continues to maintain that the cannabis was used for his own personal use, despite the fact that he was found to be in possession of approximately 700 grams of cannabis leaf and fourteen cannabis plants in 2008, and 7.22kg of cannabis and 13 cannabis plants in 2010 (whilst being subject to a supervised bond in respect to the 2008 offences).
If I were to accept that the quantities of cannabis located by police in 2008 and 2010 were for Mr Slager's personal use, given the passage of time since his last conviction and lack of any recent offending, it is possible he could now be considered a fit and proper person to hold a firearms licence. However, the confidential material provided by the Commissioner, when considered in conjunction with Mr Slager's history, does not persuade me that is so.
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Due to the nature of the confidential material, Mr Slager has not been given an opportunity to comment upon it or provide any evidence in reply. He is thus clearly at a disadvantage. I am satisfied, however, that weight must be given to that material in my consideration of whether Mr Slager is a fit and proper person to hold a firearms licence and whether it is in the public interest for him to do so.
In addition to matters concerning the use and cultivation of cannabis, the Commissioner suggests that Mr Slager is not telling the truth in relation to ownership of the firearm found in 2008. Very little can be made of this incident. There is no evidence that the firearm belonged to Mr Slager and no-one was ever charged in relation to the firearm. This is not a matter that I have taken into account in my consideration.
I accept Mr Slager has a genuine need to possess and use firearms on his property. However, as noted above, a person's individual interest in holding a licence must be subordinate to the public interest in ensuring public safety: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276. Furthermore, Mr Slager has never had a firearms licence and has managed to successfully run his cattle property for many years. While he states he cannot continue to rely on others, there is no evidence that he cannot or that continuing without a licence would have a significant deleterious effect on his business or his stock.
In light of Mr Slager's past conduct and the confidential information provided to the Tribunal, I cannot be satisfied that after considering all relevant matters permitting Mr Slager to have a firearms licence would be consistent with a need to reduce any risks to public safety to a minimum. For this reason I find that it is not in the public interest for him to hold a firearms licence. Based on the same evidence, I also find that Mr Slager is not a fit and proper person to hold a firearms licence.
It follows that the correct and preferable decision is to affirm the decision of the Commissioner to refuse Mr Slager's application for a firearms licence.

Order 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 January 2025

At a glance

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Judgment (15 paragraphs)

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Cases Cited (21)