Staker v Commissioner of Police, NSW Police Force

Evidence

1. The Applicant provided a statement dated 29 May 2022. He gave evidence and was cross examined. A copy of a receipt from Transport for NSW for the Applicants driver's licence dated 8 July 2022 was also forwarded to the Tribunal.
2. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
3. Both parties provided helpful submissions. Tribunal's approach
4. 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. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 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: s 38(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

Applicant's licence history

1. The Applicant was first issued a Category AB firearms licence on 19 November 2004, which was renewed on 13 January 2010 and 13 January 2015. A Category D licence was added on 22 November 2017. His licence was suspended on 24 October 2019 and then expired on 13 January 2020.
2. On 3 August 2020 the Applicant applied for a Category A firearms licence, the subject of this application for review.

On what basis was the Applicant's licence application refused?

1. Applicant not a resident of NSW: s 11(3)(d) of the Act
2. In the Internal Review the Respondent considered the Applicant was no longer a resident of New South Wales.
3. The Applicant previously was a resident of Victoria and held a Victorian driver's licence, but worked in the Broken Hill area. There was evidence that he has recently purchased a home in Broken Hill, and his two sons (the boys) live there with him. The Applicant provided a copy of his NSW driver's licence receipt dated 8 July 2022.
4. Before me the Respondent did not press the contention that the Applicant is not a resident of this State. I am satisfied that the Applicant meets the residency requirements of s 11(3)(d) of the Act.
5. Domestic circumstances: s 11(4)(a) of the Act
6. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]-[43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
7. On 24 October 2019 the Police received information that one of the Applicant's sons had reportedly seen the Applicant threaten his then wife with a loaded firearm, push her to the ground and place his hands around her throat. When the Applicant's wife was spoken to by Police she denied that version of events but admitted that she and the Applicant had argued and pushed and shoved each other. Police observed a small red mark on her neck and several bruises on her legs. The Police seized a number of firearms owned by the Applicant. As a result of the incident the Police served an Interim Apprehended Domestic Violence Order (IADVO) on the Applicant. The IADVO was said to have expired on 16 April 2020 but there was no information in the material before me as to the circumstances of the withdrawal, or if it had merely expired.
8. I observe that the only account of the incident was provided by one of the Applicant's sons. The Applicant's wife only said that there had been mutual pushing and shoving, which, on the observations of Police likely resulted in bruising to the Applicant's ex-wife. As far as I could see, the Applicant provided no account of what occurred at all, nor did he address the allegation in his evidence. I find that the incident involved at least pushing and shoving by both the Applicant and his ex-wife.
9. After the Applicant's firearms licence application was refuse, on 22 March 2021 the Applicant was charged with a domestic violence offence: stalk or intimidate intending to cause fear of physical or mental harm. According to the Facts Sheet it was alleged that the Applicant had: 1. verbally threatened his then wife, including that he would smash her and her car; 2. called his wife derogatory names; 3. threatened to slit the throat of his wife's friend; and 4. threatened to gouge the eyes out of his wife's mother.
10. The Applicant pleaded not guilty to the charge and, following a hearing in November 2021, the charge was dismissed. There was no transcript of what had occurred at the hearing and, before me, there was no evidence beyond what was contained in the Facts Sheet. I observe that Facts Sheet are no more than an outline of the case the Police hoped to be able to prove beyond reasonable doubt. It is unknown whether the prosecution made out a prima facie case.
11. Notwithstanding the charge against the Applicant was dismissed, the Tribunal is to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. The difficulty is that the only material in relation to the incident was that contained in the Facts Sheet. There was no COPS Event report relevant to the alleged incident in the s 58 documents. Before me the Applicant provided no evidence about the allegation, other than to note that the charge was dismissed following a hearing. He was not cross examined about the incident before me either. There was no information available to me about the hearing and whether, for example, witnesses, who, from the Facts Sheet are likely to have included the Applicant's now ex-wife and her daughter, had come up to proof. Or if they had given evidence at all. It was recorded in the Facts Sheet that the Applicant had declined to give Police a statement and it is unknown if he gave evidence before the Magistrate. In the ordinary course, the conduct complained of in the Facts Sheet would be regarded very seriously, and in this Tribunal, as discussed above, I need only be satisfied as to the conduct on the balance of probabilities. In the absence of any evidence beyond that contained in the Facts Sheet, however, I am unable to be satisfied on the balance of probabilities in relation to the allegations about that matter, and to that extent, I have disregarded the alleged incident in the context of consideration of the Applicant's domestic circumstances.
12. In the Internal Review, reference was made to a Victorian IADVO from 2014 (or 2015) which had been issued against the Applicant, in favour of a person, who, the Applicant explained in his evidence, was his ex brother-in-law. He said his ex brother-in-law had "gone to court" and had it "chucked out", and that it was he, and not the Applicant, who was the perpetrator. He said that there had been "too much" alcohol involved.
13. The Respondent pointed to other incidents which, it was submitted, give rise to serious concerns about the Applicant's domestic circumstances: 1. On 14 April 2021, the boys, reported to the Police that the Applicant's ex-wife had left them alone for two weeks. They reported that conversations they had with her involved her yelling at them to the point where one had blocked her phone number. The report also alleged prior physical abuse of the children by their mother. The report alleged that the Applicant's ex-wife was verbally aggressive and that she would leave the children without notice for hours at a time. The boys reported fearing their mother and that they wanted to reside with the Applicant because they felt they would be safer. Curiously, in the relevant COPS Event recorded that, at that time, there was a current ADVO against the Applicant and that he had been bailed to live outside Broken Hill and to have no contact with the boys. I could locate no other reference to this AVO. 2. On 21 April 2021, the Police sought an ADVO against [SJ], the boys' half-brother, after SJ threated to assault one of the boys at the Applicant's home. 3. On 16 July 2021, one of the boys reported to the Police that his mother, six years ago stabbed him in the upper right thigh with a steak knife when he did not finish his dinner. The Applicant's ex-wife then threatened to kill him and throw him down a mine shaft if he ever told anyone about the incident.
14. The Respondent submitted that taken together, these incidents reveal that there is reasonable cause for the Tribunal to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's domestic circumstances. 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 Act's overriding object of public safety, there is no basis for differentiating between conduct of the Applicant himself and conduct of other persons which may impact on public safety in the context of a firearms licence.
15. In his statement the Applicant accepted that there are ongoing "reports" regarding [his ex-wife] and [his] sons. It is unclear to what he refers. In his evidence the Applicant said that, while his ex-wife also lives in Broken Hill, he does not know her whereabouts. The boys have little contact with her and might only see her if they run into her by chance, as they don't want to have anything to do with her. They may have seen her only 2-3 times since the separation, and there are no scheduled meetings. She may telephone them on their birthdays and might arrange to meet to give them their gift. I observe though, that since the date of separation, according to the various COPS Events, neither of the boys has yet had a birthday. Since they have separated, the Applicant said, he and his ex-wife have had no further problems.
16. The Applicant did not specify in his statement when he and his wife had separated, although, in his evidence said that it was in March 2021. The boys are reported to have told Police on 16 April 2021 that they had not seen their mother for about 2 weeks, that is, after she left the Applicant. It is fair then, to deduce that the Applicant and his wife separated shortly after the events of 22 March 2021, which is consistent with the Applicant's evidence.
17. I accept that the Applicant and his ex-wife are separated and do not reside together. The Applicant was said to have full time custody of the boys by virtue of an Order of the Family Court. It was submitted on the Applicant's behalf that the Family Court would not have made such an Order if there was any doubt about the Applicant's character and ability to properly care for the boys and had found it was in their best interests that they live with the Applicant, rather than their mother. I do not attach great weight to this arrangement as its focus is clearly on the best interests of the boys; it says nothing about the Applicant's domestic circumstances in the firearms context.
18. The alleged incidents in October 2019 and March 2021, involved altercations between the Applicant and his ex-wife. I am satisfied that the Applicant since March 2021 has almost no contact with his ex wife, although they both live in the same town. The boys, who live with him, have sporadic contact with their mother.
19. I do not consider the evidence sufficient to satisfy me that the Applicant should not have a firearms licence solely because of his domestic circumstances.
20. False statement in application: s 70 of the Act
21. The Respondent relied on the Applicant's firearms licence application dated 3 April 2020 and claimed the Applicant had intentionally provided false and misleading information when he answered "No" to the question: "Have you in NSW or elsewhere within the last 10 years been the subject of an Apprehended Violence Order (other than an order which was revoked) or an injunction order by the Family Court, or presently subject to an Interim Apprehended Violence Order." (Tribunal underlining). The Applicant was the subject of an Interim Domestic Apprehended Violence Order (IDAVO) from 24 October 2019 until it was withdrawn; it was common ground that the IDAVO was withdrawn on 16 or 17 April 2020.
22. The Applicant gave evidence about the circumstances surrounding the making of the licence application. He said that in answering "No" to the question he did not intend to mislead the Firearms Registry. His evidence was that he believed the AVO had been withdrawn prior to him making the application as he had been so advised by his lawyer. He said that "because of COVID" he had only received a phone call from his lawyers telling him the AVO had been taken care of and it had been withdrawn; it was "done and dusted" and that he could now apply for his firearms licence. He said the conversation was "on the same day the court was", but it was unclear to what the "court" attendance by his then lawyers this referred. There may also have been an email from the lawyers, he said, but he could not now recall. As to whether he had received anything from the court, he thought he would have. Certainly, there was no evidence produced in support of any contention that he had been informed prior to making the application that the IADVO had been withdrawn. On his own evidence though he was not made aware that the IADVO had been dismissed until it was "done and dusted", and therefore could not have been before 16 or 17 April 2020. I do not accept that the Applicant was informed prior to making the application that the IADVO had been withdrawn.
23. He further said that, had he known the IADVO had not been withdrawn, he would have delayed his application until after that time. The IADVO was withdrawn 14 days after he made his application. It was submitted on the Applicant's behalf that the Tribunal should be satisfied there was no intention on his part to intentionally provide false or misleading evidence to the Firearms Registry, as he could simply have waited.
24. In Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18], I said that one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in licence applications. In Kogias v Commissioner of Police [2020] NSWCATAD 297 (Kogias) the applicant, who had failed to disclose that he had previously had his licence revoked, said, as here, that the incorrect statements in the application were errors and were not intentional. Nonetheless, the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. See also Lukas v Commissioner of Police, NSWPF [2021] NSWCATAD 268. The provision of true and accurate information in firearms licence applications is key to protecting the public interest and ensuring the integrity of the firearms licensing system: per Kogias at [114].
25. It is irrelevant that the IADVO was ultimately withdrawn; at the time the Applicant completed the firearms application there was an IADVO against him. The question was clear: are you "presently subject to an Interim Apprehended Violence Order." There could have been no doubt in the Applicant's mind that he was still subject to the IADVO. Even if he were unsure, he should have contacted his then lawyers to clarify the position.
26. I consider that the Applicant's explanation was less than impressive and, at best, suggested a degree of carelessness in completing an official document, the meaning of which was clear. The Applicant may be unsophisticated, but he has filled out at least four previous firearms applications; in fact, in his 2004 application he had written in response to a question about domestic violence that he had been accused of assault a few years ago, but it was "thrown out of court". I do not consider his present "error" to be excusable. Public interest
27. The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.
28. 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 objects of the Act and the strict licensing controls under the Act. 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 deciding whether to exercise a discretion in favour of an individual.
29. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety, which is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. Where there is the 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: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
30. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] 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 never pose any risk to public safety. The question of risk is not to be 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: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66]. The principle in Ward 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. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
31. The Respondent submitted that the evidence demonstrates that the Applicant has had a number of incidents with his family where he, and they, have come to the attention of Police, and hence, it would be contrary to the public interest if the Applicant were permitted to use and possess firearms.
32. It is interaction between the Applicant and his wife and her family that gives rise to concern, especially, on his ex-wife's account to Police, in October 2019 there had been physical violence between them. I observe that is only now just over a year ago that the Applicant and his wife separated: cf Mekhitarian v Commissioner of Police [2022] NSWCATAD 198. She resides in the same town, and sees the boys, although sporadically. I also observe that one of the boys holds a minor's firearms licence, although, according to Police, he does not appear to be in possession of any firearms. I also observe that on 21 April 2021, an ADVO was issued against the boys' half-brother, after he had allegedly threated to assault one of the boys; this altercation occurred at the Applicant's home.
33. The Applicant was said to be seeking to obtain his firearms licence so he can ultimately resume work as a contract kangaroo harvester to support his family. It is therefore somewhat odd that, in his present application that he has only sought a Category A licence, in which he indicated the only genuine reason of recreational hunting/vermin control, and not business or employment. I note that he subsequently sought to amend his application by email dated 4 June 2020 to add a Category B and D licence, writing that he was managing a 60,000 acre property and needed to be able to put down sick and drought-affected stock.
34. Private interests are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters 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].
35. In Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 at [42] I recently observed that I generally agreed with the principle in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), where:
36. …. the Tribunal recently accepted that, in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of a firearm; see [103]. In Grenfell , the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a IADVO that was, as here, later withdrawn.
37. I accept that the Applicant has no convictions for any domestic violence related offence. There was evidence though that the Applicant has had, at least in recent years, a volatile family life. The allegations of violent and intimidating behaviour by the Applicant himself towards others, although not resulting in any convictions, are also a concern for public safety and the public interest.
38. The public interest also requires that licensees be aware of, and comply with, the legislative requirements for holding a licence. The Applicant's misleading statement in his application is a breach of the Act and cannot be disregarded as trivial.
39. He also said he was a professional kangaroo harvester, and supplied another letter authorising shooting on the author's property. As to the Applicant's professed goal to be a contract kangaroo shooter, it is unclear to what end the Applicant seeks the present licence. His application further demonstrates his lack of care in completing forms for the purposes of the licensing regime.
40. The Respondent also pointed to other anomalies in the Applicant's firearms applications. For example, in his 2014 and 2017 applications he had said his address was in Broken Hill, whereas his evidence was that, although the family home was in Victoria, he worked in NSW and stayed at the nominated address, which was his parents' home, when working. It is likely he would not have met the residency requirements. He had also claimed that he had been a contract shooter for some years and road train driving only part time, whereas in his 2014 application he wrote that his only genuine reason was sport/target shooting and recreational hunting/ vermin control. In 2017 he applied on the basis that his genuine reason was vertebrate pest animal control, and also applied for a contract shooter licence, describing himself as a professional kangaroo, feral rabbit and wild boar harvester, and provided letters from owners of two properties, one, of which wrote in 2017 that the Applicant had been their kangaroo harvester "for some time", and he provided a commercial harvester licence dated 13 December 2016 to that effect. It is clear that the Applicant has operated, whether full time or otherwise as a professional harvester of feral animals. As far as I could see, at no time did he state in any licence application that he was running a business of that kind. The evidence was altogether unclear for what purpose the Applicant seeks the firearms licence the subject of this review. The evidence demonstrates, at best, a carelessness towards the regulatory regime, which is unacceptable.

Conclusion

1. In all the circumstances, because of the concerns expressed above, I am reasonably satisfied, that it is not in the public interest for the Applicant to hold a firearms licence at this time. DECISION
2. 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: 18 July 2022