Smith v Commissioner of Police, NSW Police Force

Smith v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 350 - NSWCATAD 2024 case summary — Zoe

[5]

Background

In 2011, the applicant was issued with a firearm licence for the reason of recreational hunting/vermin control for a five year period. In 2016 the licence was renewed.
In 2017 the applicant was issued with an infringement notice for driving while exceeding the speed limit by no more than 10km/h.
In 2019 the police attended the applicant's home without any notice (contrary to s19(c) of the Act) to conduct a safe storage inspection in relation to his firearm licence. The safe was not bolted in and three long-arm rifles were in an unsecured hard case. The police advised the applicant that if he rectified the issue of the safe storage, that is, if the storage was immediately secured, they would not suspend his licence.
The applicant informed the police that four firearms were at his brother's home. The police attended on the applicant's brother's home and confirmed that the four firearms were stored safely. The applicant was issued with a penalty notice for not keeping firearms safely.
The following is taken from a COPS event. On 4 October 2019, Mr Yalouris made a report to the police that on the previous day, a man dressed in Bandidos colours knocked on his front door and gave him a piece a paper. The paper had written on it; the applicant's name and his phone number, Mr Yalouris' name and the figure $4500. The man told Mr Yalouris to contact Mr Smith later in the evening and arrange for the outstanding money to be paid or that there would be retributions.
Mr Yalouris told the police that about 6 months prior he received a letter of demand from Mr Smith for $4500 to be paid or that he would be taken to court for the outstanding amount he owed Mr Smith for a car. Mr Yalouris stated that he spoke with Mr Smith and told him that there was no money outstanding and that he would be happy to go to court for the matter. He heard nothing about this claim until 3 October 2019.
The police attended on Mr Smith on the same day. Mr Smith stated that he knew nothing about it and that Mr Yalouris fabricated the incident to get him in trouble with the police. Mr Smith admitted that there was a dispute as to whether Mr Yalouris owed him money for a car.
In 2020, the applicant reapplied and was issued with a firearms licence. He identified the genuine reason as being "sport/target shooting".
On 4 April 2022, the applicant was issued with an infringement notice for riding a motorbike with a non-compliant muffler.
On 22 April 2022 the applicant was issued with an infringement notice for using his mobile phone while driving.
On 5 February 2023 the applicant went on a motorcycle ride with Mr McElwaine and his partner. Mr McElwaine was wearing full Bandidos colours. Mr McElwaine and his partner had been the applicant's neighbours for some eight years.
On 21 September 2023 the police assisted a council ranger for Kempsey Council to remove dogs located at the applicant's residence due to the Council's concern that the dogs had caused injury to another dog. The COPS event stated that the applicant "has links to Bandido".
On 27 September 2023 the police issued the applicant with a revocation of the firearm licence and seized 16 firearms and a large amount of ammunition. Two firearms were later seized from his brother's home.
The reason for the revocation was that: Information maintained by the NSW Police Force indicates that you have a close association with a member of an Outlaw Motorcycle Gang and persons who have adverse criminal holdings.

[6]

Applicant's case

The applicant contended that he was being targeted because his neighbour, Mr McElwaine who is a member of the Bandidos. The applicant denied that he was associated with Mr McElwaine or Bandidos. He stated that he had a neighbourly relationship with Mr McElwaine but had distanced himself from him since they rode together in 2023 on that single occasion. He stated that he only speaks to Mr McElwaine or his partner when they are outside and they do not visit each other's homes.
Mr Smith responded to an allegation by Mr Yalouris contained in a COPS event. He denied that he sent someone around to Mr Yalouris' house from Bandidos to collect money or approved it. In his statement, the applicant stated that "It was very common knowledge between my friends that he owed me money" and "if anybody did attend (Yalouris' house) they have done it without my knowledge or approval."
Mr Smith stated that on 26 November 2018, he sent Mr Yalouris a text message regarding $4500 he owed him for a car that he needed to pay or that Mr Smith would take legal action against him. Mr Smith was not paid and he received no response from Mr Yalouris.
Mr Smith asserted that Mr Yalouris made up the allegations made on 4 October 2019 in response to his text messages. He stated that, in the past, Mr Yalouris was a good friend and knew about Mr McElwaine being a neighbour and his "relationship with him". He stated that Mr Yalouris knew about the firearms and that the allegations he made to the police would impact on that and that it would deter him from recovering money he owed him for a car.
Mr Smith stated that he never received any money from Mr McElwaine and doubted that Mr Yalouris ever paid that money to Mr McElwaine.
In regard to the dogs, the applicant stated that on 17 May 2023 he had a visitor that did not lock the gate properly and that the three dogs escaped. The dogs were found by the Kempsey Council. The Council informed the applicant's partner and daughter that the dogs attacked another dog at Euroka. The council ranger attended at the applicant's property to check if the yard was secure and the dogs were returned.
In mid September 2024, one of the dogs escaped as a neighbourhood dog had broken a panel off the fence. The dog attacked another dog. The ranger and the police attended and removed the other dogs. The applicant did not believe that his dogs attacked the other dogs. He stated that he was disputing the case in court.
The applicant provided character references that stated that he was not a member of a motorcycle gang, that he was a responsible person and would not do anything illegal. Mr Smith's partner stated that he was a kind and thoughtful person.
The applicant stated that he did have a poor driving record but that he had no incidents since 2022.
The applicant submitted that he should be granted a firearms licence because he is no risk to public safety, that he has no involvement with criminal activities or organised crime and he is in compliance with the firearms laws.

[7]

Respondent's case

The respondent submitted that the Tribunal ought to find that the correct and preferable decision is to affirm the respondent's decision to revoke the applicant's firearms licence. The respondent relied on three grounds under the Act: 1. the issue of a licence would be contrary to the public interest (ss 24(2)(d) and cl 20 of the Firearms Regulation 2017); 2. the Applicant is not a fit and proper person to hold a licence (ss 24(2)(c)); and 3. the Applicant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances; (s 11(4)(a) and s 24(2)(a)).
The respondent's case was based on Mr Smith's; 1. association with Mr McElwaine; 2. failure to comply with regulations concerning dogs; and 3. failure to comply with traffic regulations.
The respondent referred to the Bandidos as an Outlawed Motor Cycle Gang (OMCG). The respondent's internal review decision referred to the Bandidos as a "criminal gang". There was reference to the Australian Criminal Intelligence Commission and Australian Institute of Criminology findings that OMCG members engage in criminal activity including firearm offences, violence, intimidation and organised crime offending. The applicant took no issue with this description of the Bandidos.
The respondent submitted that the applicant had a close ongoing neighbourly interactions with Mr McElwaine who is a member of the Bandidos. Evidence was led that Mr McElwaine has a serious criminal history.
The respondent submitted that even if the applicant was not personally involved in organised crime, "the mere fact that he has an ongoing relationship with Mr McElwaine would generate reasonable cause to believe the applicant may come under pressure to make firearms or ammunition available to Mr McElwaine or the Bandidos OMCG."
In regard to the regulations concerning dogs and traffic laws, the respondent submitted that the applicant "demonstrated a complete disregard for public safety".
The respondent submitted that the applicant's genuine reasons were recreational hunting and vermin control and sport/target shooting and that these reasons were less than other reasons such as primary production, which "would require only a slight public interest against the applicant."
The respondent contended that the correct and preferable decision is to affirm the revocation because of the applicant's association with Mr McElwaine and "disregard for licensing regimes".

[9]

Consideration

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision was correct. There is no burden of proof on either party; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].
The underlying principles of the Act are set out in s 3(1), which declares that firearms possession and use is a privilege and is conditional on the overriding need to ensure public safety. The decision maker must be satisfied that there is virtually no risk to the public.
The Appeal Panel in Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 ("Arnold") at [74] stated: The question is whether there is in all the circumstances a real and appreciable risk to the public if the person has access to firearms: see Webb v Commissioner of Police, NSW Police [2004] NSWADT 110 at [32]… These considerations have been held to apply to the assessment of both a person's status as a fit and proper person and the public interest...
While the rules of evidence do not strictly apply in this Tribunal, the general approach to fact finding in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 110 CLR 445 ("Neat Holdings") do: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. It goes without saying that the same approach applies to evidence before the Tribunal that have been filed as Confidential Material.
In Neat Holdings at [171] it was said that: [T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. [citations omitted]
In Grant v Commissioner of Police [2020] NSWCATAD 158 the Tribunal set out its approach to dealing with confidential information which has not been disclosed to the applicant: [23] In circumstances where the applicant is not entitled to see the confidential evidence, I have taken an approach to that evidence which is designed to achieve, as far as possible, "substantial justice." That is, I have given little or no weight to the following: 1. Allegations about the applicant, where the source of the allegations is not identified; 2. Evidence which is adverse to the applicant, where the applicant could have been, but was not, cross examined in relation to the substance of the evidence; 3. Speculative comments in the evidence. [24] It would be a denial of procedural fairness to make an adverse finding about a matter which was not put to the applicant in cross examination (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [51]). Whilst there may be some circumstances in which s 64(1)(d) of the NCAT Act implicitly permits such a denial of procedural fairness, I have not made adverse findings based upon the confidential evidence where I consider that a question about the substance of the evidence could have been put to Mr Grant in cross examination, without revealing confidential information. [25] I note that it would also be an error of law to make a finding based solely on an allegation, in that this would be a finding without any probative evidence to support it (see BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 at [49] and [51]).
In Fawaz v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 317 at [146] the Tribunal added that where the confidential evidence directly contradicts the open evidence on a material point, some corroborative evidence is needed before substantive weight can be placed on it.
Where evidence is relied on by a party in a confidential hearing there ought to be an opportunity for the Tribunal to test the evidence and make inquiries about the evidence with the person(s) whose evidence is relied on; Children's Guardian v BRL [2016] NSWSC 1206 [29], [31].

[10]

Public interest

When considering what is in the public interest, I consider the underlying principles and objectives of the Act, the strict controls under the Act, the concern of the licensing regime with protecting the public, and the need to give public safety paramount consideration. One of the underlying principles of the Act is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety (s 3(1)(a)).
The concept of public interest involves the interests of the whole community. These are given priority over private interests of the person wishing to hold a firearms licence. The notion of public interest includes concerns about 'public protection, public safety and public confidence in the administration of the licencing system.' Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33].
Public safety is a primary consideration of holding a firearms licence, and holding a firearms licence is conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28.
In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 ("Martin") at [66] the Tribunal observed: 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.
In Tolley v Commissioner of Police [2006] NSWADT 149 ("Tolley") at [31], the Tribunal stated: 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.
The conduct of Mr McElwaine is therefore a relevant factor in determining whether in the public interest Mr Smith ought to be granted the privilege of possessing firearms: El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242 ("El‑Chamy") at [60], Tolley at [31]; Addison v [2019] NSWCATAD 99 [19]-[21]; Hamid v Commissioner of Police, NSW Police Force [2018] NSWCATAD 43; Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79.

[11]

Continuous and responsible control over firearms

Section 11(4)(a) states that a licence is not to 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 the applicant's way of living or domestic circumstances.
The term "reasonable cause to believe" was considered in LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41] - [43]. The belief, based on an objective basis, requires more than mere suspicion or conjecture.
The issue about control over the firearms is critical because there is no basis for differentiating between conduct of a firearms licence applicant and the conduct of another, which may impact on public safety in the context of a firearms licence; Tolley at [31].
The Tribunal has previously considered that continued associations with 'known criminals' is a consideration worthy of reasonable weight; Salter v Commissioner of Police [2021] NSWCATAD 37 at [42]; Adams v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 194 ("Adams") at [90].
In Adams, The Tribunal has held that even when there is no evidence that an applicant has personally engaged in any drug dealing, firearms trafficking, violence or other similar criminal activities, they could come under pressure to make guns or ammunition available to criminals or criminal organisations if association with them continues.
The Tribunal has held that even when there is no evidence that an applicant has personally engaged in criminal activities, he or she could come under pressure to make guns or ammunition available to others engaged in criminal activity; Tolley; El-Chamy at [61], [63] citing Ryan v Commissioner of Police [2021] NSWCATAD 23 ("Ryan").
In Ryan, the applicant's partner had been the subject of police reports concerning drugs, aggravated robbery, assault, stalking and intimidation. It was found that there was reasonable cause to believe that the applicant's partner may take advantage of their domestic circumstances and therefore the applicant may not personally exercise continuous and responsible control over her firearm. In Tolley also, there was a concern about the potential pressure that might be applied to the applicant from a family member or partner to access the firearms.

[14]

Incident with Mr Yalouris on 3 October 2019

The COPS event is hearsay evidence. Mr Smith made no objection to the admission of the COPS event at pgs 73-74 of Exhibit R1. There was no request made for the respondent to make Mr Yalouris available for cross examination.
Mr Smith's evidence was that he did not know whether the incident occurred or not but believed that it was a fabrication. Mr Smith told the police on 3 October 2019 that he believed it was a fabrication because Mr Yalouris wanted to get him "into trouble with the police". In his statement, Mr Smith stated that he believed it was a fabrication "in response to my text messages for reasons best known to himself (sic) to deter me from pursuing him further as he knew I had firearms and that it would affect me (sic)"
Mr Smith agreed to the underlying facts of the incident with Mr Yalouris, which is that he believed that he owed him money for a car and that he had previously made demands for it.
Mr Smith's evidence was that "It was very common knowledge between my friends that he (Mr Yalouris) owed me money". Mr Smith prepared his statement knowing that the person who approached Mr Yalouris was wearing Bandidos colours.
Mr Smith gave no evidence denying that Mr McElwaine was aware that Mr Yalouris owed him money or that he had approached Mr McElwaine to inquire whether he was involved in the incident with Mr Yalouris. Mr Smith gave no evidence of any concern about the incident which included a threat of "repercussions".
I find, based largely on Mr Smith's own evidence that his friends knew about the debt he claimed Mr Yalouris owed him and that one such friend was a person who wore Bandidos colours. Mr Smith considered that it may have been Mr McElwaine who approached Mr Yalouris but that he did not believe that Mr Yalouris give Mr McElwaine the money owed to him.
Mr Smith's speculation that Mr Yalouris fabricated the complaint because of his text messages is not supported by any evidence. No text messages were before the Tribunal. Mr Smith referred to a text message he sent on 26 November 2018 where he threatened legal action, which, based on the material before the Tribunal, was never commenced. Mr Yalouris made the complaint on 3 October 2019.
Based on the material before the Tribunal, I am not satisfied that the allegation made by Mr Yalouris was fabricated. I consider that it was more likely than not that the incident did occur because there was general agreement by Mr Smith to the underlying facts alleged by Mr Yalouris in regard to the car and the dispute about money owning. It does not seem to me that a person would wait some eleven months (the time of the SMS from Mr Smith) before deciding to contact the police with a fabricated complaint.
Mr Smith's insouciant attitude to the very serious allegation made by Mr Yalouris that he was intimidated at his home by a member of Bandidos in regard to a debt owed to him is of significant concern. This demonstrates his poor judgement. I also consider that his lack of concern about Mr McElwaine's serious past criminal conduct and involvement in Bandidos also demonstrate poor judgement. This goes to my concerns about his conduct and character.
I find that it would be contrary to public interest if a person with firearms had a friend who was a member of Bandidos who made a threat to a person regarding an issue associated with a person with firearms. The fact that the person with the firearms did know about this threat is as undesirable as if the person was involved in such conduct as the person with the firearms could find themselves under some obligation or threat by the member of Bandidos.
The circumstances surrounding this particular incident mean that there is existence of a real and appreciable risk to the public. I reject the applicant's submission that the risk in this case is merely hypothetical.
This incident discloses a trait of Mr Smith's character indicating his inability to hold a firearms licence. The trait is that Mr Smith is friends with people or a person who is a member of Bandidos and that he failed to condemn threatening and intimidating behaviour by such a friend.
I do not consider that it is in the public interest for Mr Smith to be licenced to possess or use firearms. I also find that Mr Smith is not a fit and proper person to be licenced to possess or use firearms.
There is a risk to the safety of the public if the person's attitudes, character and prior conduct are or can be seen to be inconsistent with the focus on public safety being of paramount consideration; Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218; Martin [64]-[66]. The incident with Mr Yalouris is not minimal, fanciful or theoretical; Webb v Commissioner of Police, NSW Police Service [2004] NSWADT 110 [32].

[15]

Driving record and Dog Ownership history

Mr Smith owned five dogs. There are documents before the Tribunal produced pursuant on a summons on Kempsey Shire Council regarding the dogs. The documents disclose that there are reports of some of the dogs absconding from 2022 to 2023. That the dogs were not properly registered, that the dogs were a nuisance and that the dogs chased claves. There were two critical allegations. The first was that the three of the dogs seriously mauled another dog which required urgent and extensive surgery in May 2023 and that on 18 September 2023 one of the dogs was involved in a further attack which resulted in the death of a dog.
On 21 September 2023 there is an allegation that a dog again absconded and attacked another dog. Police and a Kempsey Shire Ranger attended at the property and seized three dogs. Mr Smith was issued with three general fine notices with failure to comply with dangerous dog control requirements.
Mr Smith provided character references from numerous persons one of whom was Ms J Jacobs who lived at number 7 of the same street on which Mr Smith lived. Ms Jacobs stated that she was "friends" with Mr Smith and that she had been to Mr Smith's house "many times" in the past.
During cross examination, Mr Smith stated that he did not comply with the dangerous dog control requirements because his lawyer told him that he did not need to. He also stated that he did not agree that his dogs attacked the other dogs as alleged and was challenging the Council's claims in court.
The respondent's submission that these documents disclose that Mr Smith's disregard for public safety. I have previously set out Mr Smith's driving record. In regard to the driving record, while problematic, I do not consider it serious enough to warrant a finding that it demonstrates a "disregard for public safety". In regard to ensuring control of the dogs, some of the allegations are very serious, however they are allegations denied by Mr Smith and have not been finally determined by a court. I place no weight on these documents. Having said that, it is the conduct rather than the conviction that is concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 [30].

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