Thomas v Commissioner of Police, NSW Police Force

Material before the Tribunal

1. The respondent relied on: 1. A paginated and tabbed bundle of documents filed under s 58 of the ADR Act provided to the Tribunal on 4 September 2017. 2. A statement from Senior Constable Luke Jamieson provided to the Tribunal. 3. [NOT FOR PUBLICATION] 4. Written outline of submissions received by the Tribunal on 7 February 2018 5. Oral submissions made by Mr Bhalla during both hearings.
2. Mr Thomas relied on: 1. His statement made 9 November 2017 2. A statement from Nathan Summerville dated 13 October 2017. 3. Psychological Risk Assessment Report dated 18 December 2017 4. Undated character Reference from Mr Christopher Shipp 5. Oral submissions made by Mr Kable during the open hearing. 6. Brief oral evidence led by Mr Thomas at the open hearing.
3. The underlying principles of the Firearms Act are outlined in s 3. Relevantly they are; 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety; 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
4. Section 73 of the Firearms Act provides that the Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, that person is not fit, in the public interest, to have possession of a firearm.

Confidential Hearing

1. The Commissioner sought an order pursuant to s 64(1)(d) of the NCAT Act prohibiting the disclosure to the applicant of confidential material that the Commissioner relies upon in the matter. The Commissioner also sought an order pursuant to s 49(2) of the NCAT Act that the part of the hearing that deals with the Commissioner's evidence be dealt with in private.
2. Section 63 of the ADR Act, requires that in determining the application for review, the Tribunal is to decide the "correct and preferable" decision and it "may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision". The Tribunal 'stands in the shoes' of the administrator when conducting a review: Cianfiano v Direct or General, Attorney General's Dept [2008] NSWADTAP 10 at [10].
3. Smart AJ cited with approval McHugh J in Johns v Australian Securities Commission (1993) 178 CL R 408 at 472: The need to protect the confidentiality of the ASC's investigation does not exclude procedural fairness, but reduces its content, perhaps in some circumstances to nothing.
4. Such circumstances are clearly contemplated by ss 49 and 64 of the NCAT Act. Having read the confidential material, the Tribunal was satisfied that the information could indeed be classified as confidential in nature and that in order for the Tribunal to properly stand in the shoes of the Commissioner, it needed to consider the confidential information available to the Commissioner in reaching the correct and preferable decision.

Consideration

1. An internal review decision upheld the original decision to make a firearms prohibition order against Mr Thomas on the following grounds: 1. Mr Thomas had been fined $400 for the offence of resisting or hindering a police officer in the execution of duty. The matter was determined on 13 January 2014. 2. Mr Thomas was subject of apprehended violence orders issued 15 December 2016 and current for the period form 23 January 2017 until 14 December 2017. 3. Mr Thomas was on bail in relation to an allegation of contravention of an apprehended violence order.
2. The Commissioner made submissions that the open evidence demonstrates that Mr Thomas, by his own admission, is an "associate" of the Gladiators Outlaw Motorcycle Group (OMCG). They also refer to an incident when Mr Thomas was stopped on 8 October 2016 and a 41cm knife was found in his car, under the driver's seat. Mr Thomas was subsequently issued with an infringement notice in relation to the knife and an infringement notice for driving without a licence. The Commissioner also relied on the open statement of Senior Constable Luke Jamieson dated 1 February 2018 in relation to the incident on 8 October 2016. Mr Thomas was stopped as a result of police monitoring of a "Gladiators' Poker Run".
3. At para 24 of his statement Senior Constable Jamieson recollects that Mr Thomas stated that he was an "associate" of the Gladiators Outlaw Motorcycle Group (OMCG), in particular he recalls a conversation with words to the following effect: I said: "Are any of your mates in bikies gangs or clubs or anything like that?" The applicant said: Yeah I've got a few mates yeah." I said: "What are they in?" The Applicant said: "Oh a couple of Glads, a couple of Commos" I said: "You weren't with the Glads today?" The Applicant said: "No, I don't roll with them, I'm just an associate."
4. AT para 30 of the statement, Senior Constable Jamieson recalls a subsequent conversation: I said: "In regards to being an associate, are you a nom in the club?" The Applicant said: "Na just some mates that I went to school with … I did think, at first, about joining the Glads a few years ago, as a kid, but I thought, not for me. That was probably 2012, 2013. But me car is always there, so." I said: "do you have mates that are still in the club?" The Applicant said: "In the Glads? Yeah, if I see 'em in the pub I'll have a beer with 'em, but …."
5. Mr Thomas denies that he is a member of an OMCG, he stated that he did not recall a conversation with police officers that he was "attempting to nom up".
6. Mr Thomas does have a criminal history. On 15 November 2013 he received a $400 fine for "resist or hinder police office in the execution of duty."
7. Mr Thomas has also has a considerable traffic offence history. He has been issued with fines and has had his licence suspended on a number of occasions. On 30 May 2017 he was issued with a low range PCA.
8. The evidence also reveals that the applicant has been the subject of two interim apprehended violence orders relating to both his previous partners. The most recent apprehended violence order which was in place since 12 April 2017 has now been revoked.
9. Mr Thomas relies on a statement from Mr Nathan Summerville who is a friend who has known Mr Thomas for a period of 7 years. He states that Mr Thomas' former partner was abusive towards Mr Thomas and that he has witnessed her using his firearms licence against him in arguments.
10. Mr Thomas also relies on a statement from Mr Christopher Shipp who has supervised Mr Thomas at work. Mr Shipp states that he has never known Mr Thomas to be a member of an OMCG and that he has never witnessed behaviour which would be indicative of domestic violence by Mr Thomas.
11. Mr Thomas has also provided a Psychological Risk Assessment report from Mr Stephen Kreft, a registered psychologist. Mr Kreft was provided with Mr Thomas' firearms licensing history and the details in relation to the revocation of the license, including the police documents relating to the domestic disputes and suspensions of his driving license. Mr Kreft concludes in his assessment that Mr Thomas is not presently or in the foreseeable future a threat to himself or the community and that even considering the domestic altercations, he has never posed any firearm risk to himself or others.
12. The Commissioner submits that the evidence as a whole demonstrates, on the balance of probabilities, that the applicant is not fit, in the public interest, to have possession of a firearm.
13. The Tribunal also finds that the applicant is not "fit, in the public interest, to have possession of a firearm". Although Mr Thomas has held a firearm licence since he was 18 years old, his history does not reveal him to be a fit and proper person, in the public interest to hold a firearm. According to the report of Mr Kreft, Mr Thomas has been in two substantial partner relationships. However, both relationships have involved domestic incidents which have resulted in the issuing of interim or provisional Apprehended Violence Orders against Mr Thomas. The psychometric psychopathy assessment undertaken by Mr Kreft was conducted over the period of two, one hour consultations. The report of Mr Kreft details how in relation to both relationships, the domestic incidence have arisen as a result of matters relating to his partners. Mr Thomas stated that his first partner was experiencing post natal depression after the birth of their first child and became more angry and he did not recognise that this was post natal depression. An altercation over a fish tank led to police attendance and the issuing of an interim AVO. Disputes followed and the relationship ended. Mr Thomas does not have any current contact with his former partner or their son.
14. In relation to his more recent relationship, his partner reported a domestic incident to police on 18 June 2015 and a provisional apprehended violence order was issued. His partner reported another domestic incident on 14 September 2015.
15. In relation to the altercations with his past two partners, Mr Kreft states that: … it appears likely from the available evidence that Mr Thomas has in the past maintained less than ideal levels of skill to effectively cope and manage the negative behaviours and mental health issues of partners suffering disorders such as post natal depression.
16. Mr Kreft concludes that even in times of highly significant relationships, Mr Thomas has not demonstrated a threat to himself or others. The Tribunal disagrees. Both his significant relationships have resulted in provisional or interim apprehended violence orders for the protection of his partners. While these were only provisional or interim, they reflect at very least an inability for Mr Thomas to extract himself from relationship that will result in dispute.
17. Mr Thomas has also fined for having a knife under his car seat and has been issued numerous traffic infringements which at least demonstrates a disregard for the law.

The Confidential Documents

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. While Mr Thomas denies that he told Mr Jamieson that he was seeking to "nom up" or that he was an "associate" of an OMCG, the Tribunal is satisfied that while there is no evidence that Mr Thomas has taken any steps to formally join a OMCG, in the public interest, the evidence taken together at least demonstrates that he is in a vulnerable position to be associated with an OMCG. [REMAINDER OF PARAGRAPH NOT FOR PUBLICATION]

Conclusion

1. In reaching its decision about whether or not the making of the FPO by the Commissioner pursuant to s. 73 of the Act was the "correct and preferable" one, the Tribunal is required to take into account the objects contained in s. 3 of the Act as well as the text of s. 73. Given all the evidence before this Tribunal, including the confidential evidence, it is cannot be said that the applicant is a person who is fit, in the public interest, to possess a firearm. The Tribunal is satisfied that the making of the FPO is in furtherance of the principles of the Act and the Tribunal affirms the Commissioners decision.

Orders 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

Amendments 04 April 2019 - [37] amended to include previously NFP sentence per orders made in Thomas v Commissioner of Police, NSW Police Force (No 2) [2019] NSWCATAP 76 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: 04 April 2019