Treyvaud v Commissioner of Police, NSW Police Force

Treyvaud v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 317 - NSWCATAD 2023 case summary — Zoe

Background

On 22 January 2023, Mr Ryley Jay Treyvaud ("Applicant") applied for a Category AB firearms licence from the Commissioner of Police of the New South Wales Police Force ("Commissioner" or "Respondent"). Mr Treyvaud stated that his reason for a Category A licence was to "shoot on rural land" and that he has "permission to shoot from owner or occupier of rural land" at a property belonging to his father in Falls Creek, NSW. His stated reasons for a Category B licence were "Humane destruction of larger vermin, appropriate actuation, calibre and for target animal (vermin)."
On 7 March 2023, the Applicant was notified that a Senior Adjudicator at the NSW Firearms Registry, acting as a delegate of the Respondent, had refused the licence application ("Decision"). The Senior Adjudicator did so on the basis of section 11(7) of the Firearms Act 1996 (NSW) ("Firearms Act"), which prescribes that a licence may be refused if the Commissioner considers that issue of the licence would be contrary to the public interest. In the Decision, the Respondent advised the Applicant that information maintained by the NSW Police Force raises concerns regarding the Applicant's suitability to possess and use firearms without posing a risk to public safety. Such information revealed that he has "close associations with persons who have extensive criminal history. This demonstrates a public risk with firearms and ammunition." The Respondent believed that the "public would not be comfortable" if the Applicant were authorised to possess and use firearms and purchase ammunition. As stated by the Respondent, the Firearms Act confirms that firearm possession and use is "a privilege that is conditional on the overriding need to ensure public safety by imposing strict controls on the possession and use of firearms". The Respondent referred to the Applicant's domestic circumstances and stated: Whilst the Registry accepts that in the absence of the above-mentioned domestic circumstances, you may have been considered an acceptable person to have access to firearms, the overriding object of the Firearms Act is public safety and for that reason, the registry is not confined to assessing your character only, but is required to consider your way of living and domestic circumstances holistically to ensure that there is virtually no risk to public safety, including that of your own, if you had access to firearms. In this regard, the Registry is not required to separate your conduct from that of another which may impact on public safety.
On 18 March 2023, Mr Treyvaud applied to the Respondent for internal review of the Decision under section 53 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"). He stated that he did not associate with anyone described by the Respondent and could only assume they were referring to his brother, with whom he had not gotten along since he turned 17. The brother had "become a drug addict" and Mr Treyvaud said "I didn't associate with him or who he was hanging out with from that point on." The Applicant pointed out that he lives on his parents' 7-acre property "in a completely separate self-contained residence so I can make double home loan payments…". He stressed that (i) he lives on his own "separate property" and is the only one with keys; (ii) his brother doesn't live with him or on his parents' property; (iii) he is of "excellent character" and at 24 has not "even been accused of a crime" though he spoke to police as a minor; and (iv) he is working in the "stock feed business and primary production every day" and had not missed a day's work in seven years. He pointed out examples of local police officers who have family members that have gone "off the rails" or been "convicted of very serious crimes".
The Applicant was not informed of the outcome of the internal review within 21 days, and on 25 April 2023, he filed an application with this Tribunal for administrative review of the Decision, under section 75(1)(a) of the Firearms Act and sections 9 and 55 of the ADR Act. He submitted that the Respondent's claim of "criminal association" did not justify denial of his licence. He pointed out that he owns his own house, but currently rents a house on his parents' acreage for at least another year, where he lives "in a separate house/granny flat separate exit entry my own locks keys I have a lease I gave to the bank for the loan application I live by myself there is more distance between houses than new estates."
On 2 May 2023, the Respondent did eventually decide the internal review request, and affirmed the Decision to refuse the Category AB firearms licence application ("Internal Review Decision"). The Senior Adjudicator who conducted the Internal Review as a delegate for the Respondent relied not only on section 11(7) of the Firearms Act, but also on section 11(4)(a), which provides that a licence must not be issued to a person "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 Senior Adjudicator stated: Information available to the NSWPF reveals that your domestic circumstances and known associations with members of the community with extensive adverse holdings, identifies a level of risk, in the context of storing, possessing, and using firearms at any location where these people may visit, frequent, or reside. I considered your need for a firearm, in respect to your genuine reason, and considered the use of a special condition imposing restrictions. However, given your domestic circumstances, I am of the view that a special condition limiting storage, possession and use of a firearm would then deem that need for a licence negated. It is imperative to note that it has been held that an applicant's personal interest in holding a licence cannot outweigh the public interest in the maintenance of a safe and responsible system of possession and use of firearms. Therefore, the decision to refuse your application on the basis of your domestic circumstances and the risk posed to public safety is affirmed.
The Applicant now seeks review both of the original Decision and the Internal Review Decision affirming the original Decision. The Respondent submits that the decision refusing the licence should be affirmed.
For the reasons that follow, and having considered all the circumstances, I find that even though the Applicant is a person of good character and has no criminal record, there is reasonable cause to believe that he cannot be trusted to have possession of firearms without danger to public safety, due to his personal associations and domestic circumstances. It would be contrary to the public interest to issue him a firearms licence at this stage. Accordingly, the correct and preferable decision is to affirm the original Decision to refuse his application for a Category AB firearms licence.

[4]

Relevant Legislation

The Firearms Act establishes a scheme to license people to possess and use firearms. Section 3(1) of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The Act's underlying principles also include improving public safety by imposing strict controls on the possession and use of firearms.
Section 3(2) sets out the objects of the Firearms Act, which include: (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms.
Section 8 of the Firearms Act sets out categories of firearms licences. Category A licences are for air rifles, rimfire rifles (other than self-loading), shotguns (other than pump action, lever action or self-loading), and shotgun/rimfire rifle combinations. Category B licences are for muzzle-loading firearms (other than pistols), centre-fire rifles (other than self-loading), shotgun/centre-fire rifle combinations, and lever action shotguns with a magazine capacity of no more than 5 rounds.
For both Categories A and B, the following applies: The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Section 11 of the Firearms Act is headed "General restrictions on issue of licences" and contains the following provisions (emphasis added): (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless - (a) the Commissioner is satisfied that the 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, and (b) in the case of a person who has never held a licence …, the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements … are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
Section 11(4) provides (emphasis added): (4) Without limiting the generality of subsection (3)(a), 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, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind.
Section 11(5) and (5A) set out grounds for the Commissioner to refuse a licence to an applicant, including previous convictions for "prescribed" offences, pending apprehended violence orders, or criminal intelligence reports indicating risk to public safety or public interest.
Section 11(7) states: Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
As is clear from the use of the words "may issue" in section 11(1), the decision to issue a firearms licence is a discretionary one. However, the use of the words "must not" in section 11(3) and (4) indicates that a licence must not be issued if the tests in those sections are not satisfied.
Section 12 of the Firearms Act provides further that a licence can only be issued if the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. An applicant has a genuine reason if the applicant (a) "states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section" and (b) "is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason."
For the reason of "recreational hunting/vermin control", section 12 requires an applicant to: (a) be the owner or occupier of rural land, or (b) produce proof of permission given by the owner or occupier of rural land, or by an officer or employee of the National Parks and Wildlife Service, the Department of Industry or other authority prescribed by the regulations, to shoot on rural land.
For the reason of "primary production", section 12 requires the applicant to: (a) be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and (b) state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).
Section 13 provides, with respect to Category B licences: Subject to the regulations, the Commissioner must not issue a category B licence to any person unless the person, in addition to establishing a genuine reason for being issued with the licence, produces evidence to the satisfaction of the Commissioner that there is a special need for the person to possess or use a firearm to which licence category B applies.

[5]

Jurisdiction to Review the Decision

According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Civil and Administration Tribunal ("Tribunal") has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
Section 75(1) of the Firearms Act gives this Tribunal jurisdiction, as it allows a person to apply to the Tribunal under the ADR Act for an administrative review of "(a) the refusal of or failure by the Commissioner to issue a licence".
In determining an application for administrative review, section 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 (Bilanenko v Commissioner of Police [2022] NSWCATAD 76 at [10]). 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, section 63(3)).
Under section 38(2) of the CAT 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.
There is no formal onus of proof (Meacham v Commissioner of Police [2020] NSWCATAP 107 ("Meacham") at [75]). The standard of proof is the balance of probabilities (Finlay v Commissioner of Police [2020] NSWCATAD 5 at [42] ("Finlay")). The Tribunal should properly consider all relevant materials and ignore irrelevant materials. The Tribunal is not bound by the rules of evidence (CAT Act, s 38(2); Meacham at [22]). The Tribunal is to make its own decision and there is no presumption that the Respondent's earlier decisions are correct (Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344 at [54]).

[7]

Applicant's materials

The documentary material from the Applicant comprised: 1. The Application to this Tribunal, dated 25 April 2023 and attaching the Respondent's original Decision of 7 March 2023 refusing the licence. 2. The Applicant's documents filed on 8 September 2023, including: 1. Character references, attesting to Mr Treyvaud's helpful and respectful behaviour, well-mannered nature, cautious approach to machinery and driving, and strong work ethic, from: 1. the Applicant's father, Darren Treyvaud 2. the Applicant's mother, Kim Maree Treyvaud 3. the Applicant's friend and colleague, Rad Tyrrell 4. the Applicant's friend and colleague, Keith Bryan Albright 1. The Applicant's Statement for internal review, in which the Applicant noted: 1. His interest in farming and production at the family cattle stud on a 104 acre block in Falls Creek, where he works "Monday to Sunday". The family plans to run sheep in the future. One of the "main reasons" he wanted a gun licence was "animal welfare and livestock protection" as they "currently use a bolt gun" which "over the years has become more difficult and stressful to the animals and all involved." 2. Mr Treyvaud serves 100 customers a day at his family's pet and produce store and sees his role as taking over the family farm and business when his parents retire. 3. Mr Treyvaud only socialises with a small group of people of good character, and when he is not at work, he says he keeps himself occupied with computers, cars and researching farming techniques. 4. Mr Treyvaud purchased his first home at 18 and upgraded to another home after three years, which he currently rents out but plans to move into in 2024. His current living arrangements on a 7-acre family farm include a self-contained residence for which only he has a key. There is a video intercom electric gate alarm and camera system for the property. 5. Mr Treyvaud says that a firearms licence is "crucial to our primary production and should a firearm be in my possession, the utmost care will be taken for its safe keeping and there will be no threat to our community."

[8]

Respondent's materials

The non-confidential documentary material from the Respondent comprised: 1. The Respondent's materials under section 58 of the ADR Act, filed on 20 June 2023: 1. Firearms Licence History, listing only the Applicant's application of 18 March 2023, the refusal Decision and the Internal Review application and Decision and application to this Tribunal. 2. Criminal History of the Applicant, reporting "No Criminal Infringement Notice Records Found" and "No Breach of Bail Charges Found". 3. Traffic Record Report and Driver's Licence Conditions, recording issuance of learner and provisional licences (Class C) and no driving infringements. 4. Computerised Operational Policy System ("COPS") Information Reports, containing ten reports, of which the following were highlighted by the Respondent: 1. December 2004 - domestic incident between the Applicant's parents, which involved the mother calling the police, not wanting to press charges but asking the police to apply for an AVO against the father. 2. January 2016 - physical fight between the Applicant and his brother, Jake, when they were minors (involving chasing, stabbing with a fork, biting, superficial injuries), attended by police and ambulance. The Applicant was issued a provisional AVO in 2016 which was withdrawn on 28 April 2016. At the family's request, no further action was taken. 3. 21 May 2016 - the father was issued with an interim AVO for the protection of the mother, the Applicant, the Applicant's brother and a foster-daughter. This interim AVO was replaced with a further one on 25 May 2016 until 26 October 2016. 4. April 2019 - the Applicant's brother, Jake, was 17 years old and barricaded himself in his bedroom. He had a physical altercation with his father, which involved the Applicant and his mother trying to intervene and also being physically hurt. Jake then threatened to take his own life and run away. He was located and scheduled under the Mental Health Act 2007 (NSW) but left hospital before being assessed. Jake got into a further physical altercation with his father and again threatened to take his life, leading to police and ambulance calls. Jake was scheduled under the Mental Health Act and the police applied for an AVO for the protection of the parents. 5. August 2021 - contains a report of a fire on the Treyvaud family's property that also recounts conflict with various parties around the community that had been reported to police. No police action was taken in relation to the fire. 1. Applicant's Application for a Firearms Licence dated 22 January 2023. 2. Firearms Registry Notices and related correspondence, including: the Respondent's Notice of Refusal of 7 March 2023, the Applicant's Internal Review submission of 18 March 2023, and the Internal Review Decision with reasons of 2 May 2023. 1. The Respondent's Application of 30 June 2023 under section 59 of the ADR Act and sections 49 and 64 of the CAT Act for orders that the disclosure and publication of the confidential version of Senior Constable Nicholas Kaluski's statement and the confidential documents attached to it ("Confidential Material") be restricted. The Confidential Material comprised, according to the Respondent's open submissions of 30 June 2023, "records and documents held by the NSW Police Force … that contain confidential criminal reports and criminal intelligence in relation to the Applicant's associates". 2. A statement of Senior Constable Nicholas Kaluski of 15 June 2023, filed with the Tribunal on 30 June 2023 (in open version and confidential version attaching the Confidential Material). The Confidential Material appended to the confidential version of SC Kaluski's report included: 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 1. The Respondent's submissions dated 10 October 2023.
On 1 August 2023, Principal Member Simon ordered: 1. Pursuant to s49 of the Civil and Administrative Tribunal Act 2013, the hearing of the application for miscellaneous matters filed on 30 June 2023 was conducted in the absence of the applicant and the public and the publication and reporting of the hearing is prohibited pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013. 2. Pursuant to s59 of the Civil and Administrative Tribunal Act 2013, the respondent is not required to provide the confidential material to Ryley Jay Treyvaud. 3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the confidential material to Ryley Jay Treyvaud or his legal representatives is prohibited.

[9]

Hearing

At a hearing held on 20 October 2023, all of the above-referenced evidence was admitted to the record, without objection from either side. The Applicant appeared via video, and was represented by Mr Glenn Kable of Hartmann & Associates Solicitors, who appeared in person and made submissions on behalf of the Applicant. The Respondent was represented by Mr Nathan Roberts of McCullough Robertson, who appeared in person and made submissions on behalf of the Respondent.
The Applicant gave evidence at the hearing and answered questions from the Respondent and from the Tribunal. The Applicant's answers included the following points: 1. Living arrangements: He currently lives on a 7-acre property with two dwellings on it. His mother Kim lives in one dwelling, and the Applicant lives in the other. The two dwellings are approximately 20 to 30 metres apart. There is one driveway into the property, which then forks off to the two separate dwellings. There is an electric front gate with intercom, for which only he and his mother have buttons. There are security cameras around the house. The Applicant lives in a granny flat and he is the only one who has the key for it. His father Darren has been living at the family farm for around four years since he bought the farm, which is located 25 to 30 km away from the residence. However, the father visits the residence "every so often including most weekends" and sometimes stays the night. The Applicant said that his parents still see each other and embrace like a normal married couple. He did not recall the domestic incident in 2004 as he was too young then. He also does not recall a 2016 incident in which his father acted angrily towards his mother, or any instance of his father threatening his mother. 2. Work arrangements: The Applicant works seven days a week at the family businesses (farm and shop). His work involves feeding and trenching cattle, checking fences, getting cattle on and off the truck, and general maintenance of the tractor. He also helps at the shop, which the family has owned for about 15 years. He sees his father at work "most days of the week". 3. Reasons for firearms: The Applicant explained that sometimes an animal needs to be euthanised, about once every five or six months. For now, they need to use a captive bolt gun which is difficult and the cow can get scared and kick. He has never asked a neighbour or a contract shooter to help euthanise the cattle. He said there is also a wild dog problem in the area. Eventually, the family's plan is to get about 30 to 40 sheep and the wild dogs could then be a threat to the sheep. The Applicant said if he were granted a firearms licence, he would store the firearm at his residence, in his bedroom where he spends most of his time. Nobody who works on the farm has a firearms licence. He was unsure what his neighbour did to stop wild dogs, and confirmed that wild dogs have not yet come onto the family farm. 4. Circumstances of brother, Jake: The Applicant confirmed that his brother Jake became a drug addict but the Applicant says he never associates with Jake. He did not have detailed memories of the physical fight they had in 2016, or of the fight Jake had with their father in 2019. The last time he spoke to his brother was about two months before the hearing. His mother put him on the phone. Jake was in jail at the time. The Applicant was aware that Jake would be going to court soon and had been talking about applying for rehab when he leaves prison. The Applicant had visited him in jail a few months before the hearing. The Applicant noted that his mother still speaks to Jake and that his father may sometimes speak to him on speaker when he is on the line with their mother. The Applicant agreed that his brother seems to have anger problems and is addicted to drugs and it is a mixture of those factors that had gotten him into fights with their father. He disagreed that Jake got into fights with their mother. He had not seen Jake since he visited prison and was unsure where Jake would be residing upon leaving prison. He was not aware of any of the bail conditions including where his brother was to live. His mother had told him that Jake had gone back to jail and was still in jail but was talking about possibly going to a rehab centre near Cowra for about 12 months or more. The Applicant said that if Jake is successful in rehab, he may come back and live with their mother afterwards. Before he went to jail, Jake lived with their mother, and he has only ever lived at home (apart from a few weeks staying at a friend's place). The Applicant said that before he went to jail, Jake worked at the family farm and shop. 5. Applicant's own lack of criminal history: The Applicant confirmed that he had never taken drugs, never littered, did not drink alcohol until 18 years of age, had no driving charges, no speeding fines and no criminal record.
After hearing from the Applicant and submissions from both Parties, the Parties agreed that the Tribunal end the public portion of the hearing and for the Tribunal to proceed in a private session pursuant to section 49(2) of the CAT Act "which was desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". The Tribunal then discussed with the Respondent the Confidential Material, which was updated with one further confidential document.
[NOT FOR PUBLICATION]

[10]

Issues for Determination

The Tribunal must decide whether the Respondent's refusal to issue the Applicant's Category AB licence was "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law".
There are two different issues for determination under the statute that are disputed by the Parties.
The first contested issue is whether the licence must be refused because there is reasonable cause to believe that Mr Treyvaud "may not personally exercise continuous and responsible control over firearms because of…. [his] way of living or domestic circumstances" within the meaning of section 11(4)(a) of the Firearms Act.
The second contested issue is whether the licence sought by Mr Treyvaud must be refused on the basis that it would be "contrary to the public interest" under section 11(7).
If the Tribunal agrees with the Respondent on either of the above issues, then the Decision under review should be affirmed and no other issues need to be considered. If the Tribunal agrees with the Applicant on both of the above issues, it would then need to be satisfied of other conditions for a licence under the Firearms Act including with respect to genuine reasons as per section 12.
Before consideration of the two contested issues, the Tribunal records some observations about whether the Applicant is a "fit and proper person" under the Firearms Act. The Respondent did not, in its original Decision, Internal Review Decision, or written submissions before this Tribunal, seek a finding that Mr Treyvaud is not a "fit and proper person". However, at the hearing, the Applicant's solicitor stated that: "This is an unusual case as the Applicant comes to the Tribunal himself with clean hands. There is no question he's not a fit and proper person within the meaning of the Firearms Act." The Tribunal asked whether the Respondent agreed with that statement. The Respondent did not take issue with the characterisation of Mr Treyvaud as a "fit and proper person" for purposes of the first component of section 11(3)(a) but said it was questionable whether, in his current circumstances, he "can be trusted to have possession of firearms without danger to public safety" for purposes of the second component of section 11(3)(a) of the Firearms Act.
The Tribunal has already noted that the Applicant himself has an unblemished record. He has not committed any criminal offences or driving infringements. His family and colleagues consistently describe him as hard-working, courteous and responsible, including with farming equipment and vehicles. The Tribunal found him to be a cooperative and honest witness committed to his work in the family business, where he works seven days a week. He invested in and has maintained a property which he rents out in order to save for his mortgage repayments. He has no history of drug or alcohol abuse.
The Tribunal recalls that section 11(3) of the Firearms Act provides that a licence "must not be issued unless … (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety…" (emphasis added).
The Tribunal finds that there is no reason in this case to question the past conduct of the Applicant, his likely future conduct, or his integrity or good character. There is also no evidence indicating that Mr Treyvaud himself could personally pose a threat of danger to public safety. There is positive evidence of his unblemished record and good character. He thus fits the description of a "fit and proper person" in a standalone sense. However the phrase "fit and proper person" is not a standalone concept in the context of section 11(3)(a) which additionally requires satisfaction that an applicant "can be trusted to have possession of firearms without any danger to public safety".
Sections 11(3)(a) and 11(4) of the Firearms Act are linked. Section 11(3)(a) sets out a general rule, and section 11(4) states that "without limiting the generality of subsection (3)(a), 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" certain circumstances that are particularised in the subsections that follow. Those include "(a) the applicant's way of living or domestic circumstances".
For reasons set out in the section that follows, the Tribunal finds that it has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances. Were it not for those circumstances, as described below (including in the description of the Confidential Material), the Tribunal would not have concerns about public safety or the fitness and propriety of the Applicant himself to hold a licence. As noted by the Respondent at the hearing, there is nothing to prevent Mr Treyvaud from reapplying for a licence in the future if his circumstances change, including in relation to the rehabilitation or relocation of his brother, and/or the relocation of the Applicant himself. The Tribunal makes no findings here in relation to those hypothetical scenarios.

[12]

The Applicant's submissions

The Applicant maintains that he could exercise continuous and responsible control over firearms because he lives in a separate self-contained dwelling on his parents' property to which only he has the key, and which has a security camera system and video-intercom electric gate. He says that he would keep the firearm safely in his bedroom, where he spends most of his time. He denies associating with his brother. He mostly keeps to himself. When he does socialise, it is with a small group of people all of good character. He further points out that he intends to move to his own property (currently rented out) some time in 2024.
With respect to some of the Confidential Material, at the hearing, the Applicant's solicitor observed that COPS Reports are inherently unsubstantiated in nature. He referred to his own submissions in Carpenter v Commissioner of Police , NSW Police Force [2023] NSWCATAD 163 at [73], in which he is recorded as having submitted that "COPS entries are unsubstantiated and … no evidence has been brought [by] the authors of those entries or from any Police Officer to substantiate them … they are merely a version of the events, and they may contain embellishment" and urged that "no inferences should be drawn against the Applicant where he has presented evidence about an incident which contradicts the COPS entry when he was never given the opportunity to state his point of view."
The Applicant's solicitor also pointed to the case of Finlay, which he said involved "very similar circumstances" to the present matter. In that case, Mr Finlay's firearms licence was revoked on the basis of his domestic circumstances, when his applicant's son was living on the same property, in a separate residence (150 metres away) from Mr Finlay. Mr Finlay's son had been arrested and charged with a number of criminal offences, including stealing for drugs, and had prior firearm storage offences. Mr Finlay led evidence that he needed firearms to deal with feral kangaroos and a constant risk of snakes, and also provided evidence about his safe storage plans. Mr Finlay's son was on bail, and required to live on Mr Finlay's property as part of his bail conditions. The Tribunal observed the applicant's son was plainly not fit and proper person to hold a firearms licence but the question was "whether the domestic arrangements between him and the applicant [were] such that the latter might not personally exercise continuous and responsible control over firearms" (Finlay at [55]). Mr Finlay was aged 73 and himself had an "unblemished record and the judgment and firmness of character successfully to manage a large farming and grazing property. There is no reason to doubt that he would abide by the guidelines that he has set for himself" (including not using the firearm if the son were present). The Tribunal in that case (at [85]) also considered the public interest factors favouring a firearms licence in that case, with damage by ferals and other pests and the need to put down animals humanely. In Finlay, the Tribunal ultimately granted a category AB firearms licence to the applicant "but only if and when the Commissioner is satisfied that the applicant's safe storage arrangements meet the statutory requirements." Mr Kable urged a similar outcome for Mr Treyvaud's licence application in this case.
Mr Kable also pointed out that in this case there are 20 to 30 metres between the residences of Mr Treyvaud and his mother's dwelling (where the father frequently visits, and the brother could potentially live). Further, the Applicant noted that the brother's return might not happen for another 12 months if he attends a residential rehabilitation program.
The Applicant also suggested that the Tribunal could consider imposing special conditions, such as locating the firearms in a different location from the residence where the mother (and potentially brother) lives and the father frequently visits. However, no evidence of alternative locations was presented and it was common ground that the firearm usage was only intended to occur at the family farm.

[13]

The Respondent's submissions

The Respondent submits that the Decision to refuse the firearms licence "should be affirmed because the Applicant's continued association with family members with extensive adverse holdings and criminal records, including through his living arrangements mean that: (a) the Applicant may not personally exercise continuous and responsible control over firearms; and (b) the issue of a firearms licence to the Applicant would be contrary to the public interest."
Of the material contained in the section 58 materials, the Respondent points to the following four sets of circumstances: 1. 2 December 2004 - Domestic incident with Darren and Kim: reports of this incident indicate the parents had an argument and decided to end their relationship. An argument led to an altercation that involved yelling, pushing, kicking and punching, and a call to the police. Kim advised she did not want them to take any action for assault but wanted police to apply for an AVO. 2. 16 January 2016 - Domestic incident with Jake: while the parents went out, the Applicant and Jake (both minors at the time) had a physical fight that involved stabbing and chasing and biting. The police and an ambulance attended. 3. Applicant's father's AVOs: The Applicant's father Darren has been issued with at least two Interim AVOs for protection of his wife and children. Both were issued in May 2016, with the second remaining in place until 26 October 2016. 4. Applicant's brother's AVOs: In April 2019 and December 2019, the Applicant's brother Jake acted aggressively and violently to family members and threatened to harm himself. He also assaulted his father. He was taken to hospital and scheduled under the Mental Health Act. As a result of that conduct, police applied for an AVO for the protection of his parents against him.
During the public session of the hearing, as discussed above, it was also noted that Jake had spent time in prison including up to the date of the hearing.
The Respondent pointed out that the Applicant lives at the same address as his family home, the location at which the incidents described above occurred. The Applicant works at the family farm and store where his father lives and works. The Respondent noted that the Applicant owns a different property at Sussex Inlet but it is not the property at which he lives, works or intends to use firearms.
The Respondent submits that the circumstances in which the Applicant lives means there is an "unacceptable risk to public safety from his use or possession of firearms." The Respondent's concerns arise out of the following: 1. the Applicant's association and close residential proximity to his father who has been the subject of AVOs; 2. if a firearms licence is granted to the Applicant, the Applicant's family members will be aware that firearms are stored, or at least present, at their residential address or the family farm at which they reside or frequent. 3. The history of domestic violence at the Applicant's residence which gives rise to a reasonable cause to believe that there will continue to be conflict situations at the Applicant's residence and that, in a conflict situation, the Applicant may not be able to personally exercise continuous and responsible control over his firearms and that a person who is not licenced to hold a firearm may handle a firearm.
The Respondent submits that the Applicant's evidence that he resides in a separate self-contained residence to which only he has the key does not alleviate the Respondent's concerns. This is particularly the case where although a separate dwelling the Applicant's mother (and sometimes father) still reside on that same property. The Respondent submits that the Applicant's plans to move to his other property is not a matter which ought to be given any weight as it is not a current, or imminent, change of address or circumstance (citing Housea v Commissioner of Police, NSW Police [2014] NSWCATAD 54). The move also would not address the risks associated with possession, use and storage or firearms at the family farm at Falls Creek.
In the Respondent's submission, the Confidential Material further supports the Respondent's concerns regarding the Applicant's possession and use of firearms as a result of the Applicant's domestic circumstances and family associations.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

[14]

The Tribunal's consideration of section 11(4)(a)

The Tribunal applies section 11(4)(a) of the Firearms Act while bearing in mind the core underlying principles of the Act as set out in section 3, namely: 1. To confirm firearm possession and use is a privilege, not a right, that is strictly conditional on the overriding need to ensure public safety; and 2. To improve public safety by imposing strict controls on the possession and use of firearms.
This Tribunal has repeatedly found, referring to those objects, that the overriding consideration is the maintenance of public safety (see, e.g. Meacham, citing Ward v Commissioner of Police [2000] NSWADT 28 ("Ward"), and Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 ("Constantin") at [33]). The Tribunal stated in those cases that the decision maker must be satisfied that there is virtually no risk to the public, or to put it the words of the Appeal Panel in Commissioner of Police, NSW Police Force v Arnold [2023] NSWCATAP 264 ("Arnold") at [74]: 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...
In the present case, the evidence relied upon by the Respondent pertains not to the Applicant's character or conduct but to his associations with his father, mother and brother. In Tolley v Commissioner of Police [2006] NSWADT 149 ("Tolley") at [31], the Judicial Member Fitzgerald 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 the Applicant's parents and brother are therefore relevant factors in determining whether the Applicant may personally exercise continuous and responsible control over firearms (see El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242 ("El‑Chamy") at [60], Tolley at [31]).
The Tribunal has held that even when, like in this case, 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 (see, e.g., 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.
In the present case, the conduct particularly of the Applicant's father Darren (as detailed above) and that of the Applicant's brother Jake (as detailed in above) are of particular concern to the Tribunal insofar as they demonstrate a propensity for aggressive behaviour, violence and disrespect for rules aimed at public safety.
These concerns are exacerbated by the Confidential Material.
[NOT FOR PUBLICATION]
The Tribunal's concerns are not alleviated by the fact that the Applicant sees his father almost every day either at his place of work (where the firearm is intended to be used) or at his place of residence (where he regularly visits or stays over at his mother's adjacent dwelling). Many of the security facilities at the property are shared with the mother, including the surveillance equipment and access to the electric front gate. No alternative storage locations were identified by the Applicant in any event and it is common ground that the place where the firearms would be used would be the family farm where Darren runs the business. While the Tribunal acknowledges that the Applicant has plans to move to his other property in 2024, there is no immediate plan to do so, that property is currently rented out, and even if the firearms would be stored there, they would still be used on the farm where Darren (and, as discussed below, potentially Jake) could have access.
As for the brother Jake, although at the time of the hearing he was incarcerated, he had an imminent parole hearing and his sentence was due to end in the first half of 2024. It is common ground that the brother has a volatile history with drugs, mental health, aggressive behaviour and crime. The Applicant said that he did not know what the terms of Jake's bail conditions were or what his immediate plans were upon release from prison. However, the Applicant understood that Jake might attend a rehabilitation facility near Cowra for a year, or he might live with his mother. He stated that the only place Jake had ever lived was at his mother's home (apart from a few weeks stay at a friend's house before going to prison). He also stated that the only place Jake had ever worked was at the family business. The Tribunal therefore has reasonable cause to believe that Jake could either be proximate or present at the place of intended firearms storage and/or usage.
The Tribunal appreciates that there may be instances where applicants for firearms who live in proximity to family members or associates with criminal history may nevertheless have been granted a licence. This was the case in Finlay which was relied upon by the Applicant and which did share some characteristics with the domestic set up in the current case (including separate dwellings on the one family farm). Some aspects of that case, however, are quite distinct from the present, including that the Applicant was himself the owner of the farm, who was in his 70s. There was no concern at all with the character of the owner of the farm (Finlay at [44]) who was said to have had an "unblemished record and the judgment and firmness of character successfully to manage a large farming and grazing property." By contrast, in the present case, the owner of the farm, and the person who has granted the Applicant permission to use a firearm on his property, is the Applicant's father, Darren, who himself has a history that causes the Tribunal concern as laid out above, as well as in the Confidential Information. Another distinctive feature of Finlay was that there was more extensive evidence of the agricultural need for firearms licence in that case (a factor further discussed in relation to public interest below). A third distinctive feature is that in Finlay the applicant had presented more comprehensive evidence about safe storage arrangements and guidelines that he had set for himself for usage of the firearm in the presence of the son.
For all of the above reasons, including my observations in relation to the Confidential Material, I am satisfied that the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over firearms. Accordingly, I affirm the decision to refuse the Applicant a firearm on the grounds of section 11(4)(a) of the Firearms Act.

[16]

The test for public interest

Section 11(7) of the Firearms Act provides that, despite any other provision of the Act, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of a licence would be contrary to the public interest.
The expression "public interest" is not defined in the Firearms Act. The Tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act. The underlying principles of the Act as stated in section 3(1) stress the overriding need to ensure public safety.
The "public interest" factor allows a consideration of 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 (Constantin at [33]).
Public safety is to be given paramount consideration, and the public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements. Where there is the possibility of a threat to public safety, the public's right to safety must outweigh an individual's personal interest and privilege to possess and use a firearm (Hill v Commissioner of Police, NSW Police Service [2002] NSWADT 218 ("Hill") at [24]).
In an oft-cited passage referenced by the Respondent, Hennessy DP in Ward 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under section 11(7) as well (Masterson v Commissioner of Police [2017] NSWCATAP 206 at [130]). As already quoted above, the Appeal Panel stated in Arnold that 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."
In light of these understandings of the "public interest" test and the relevant legislation, the Tribunal now sets out the Parties' position on the application of the public interest test to this case. It will then consider, on the totality of the evidence before it, whether it would be contrary to the public interest for Mr Treyvaud to be issued with a firearms licence.

[18]

The Respondent's Submissions

In the Respondent's submission, it is also not in the public interest for the Applicant to hold a firearms licence for purposes of section 11(7) of the Firearms Act.
The Respondent referred the Tribunal to Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] for the proposition that the "public interest" is an inherently broad concept giving the Respondent (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration (Hill at [24]).
The Respondent also referred the Tribunal to El-Chamy, in which the Tribunal stated that "where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety" (at [83], referring to Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 ("Hamid") and Dalziell v Commissioner of Police, NSW Police Force [2018] NSWCATAD 79 ("Dalziell").
The Respondent submitted that the evidence before the Tribunal, both in the section 58 documents and the Confidential Material, establishes a real and appreciable risk to public safety and, at this time, it is not in the public interest for the Applicant to hold a firearms licence.
[NOT FOR PUBLICATION]
The Respondent added that the extent to which the Applicant requires firearms in this case is not strongly supported by the evidence. The evidence in fact shows that the farm has been able to operate for four years without the use of firearms, that captive bolt gun has been effective as a technique for euthanising cattle, that there is no current wild dog issue and the concerns are speculative only, and that the neighbour appears to be dealing with the issue to the extent there is one.
The Respondent noted that the Applicant could reapply for a licence if circumstances change, including for example moving to other premises.

[19]

The Tribunal's consideration of section 11(7)

The Tribunal now considers whether on the totality of the material, it would be contrary to the public interest to issue Mr Treyvaud with a category AB licence for hunting, vermin control and primary production.
The Tribunal finds the Applicant's reasons for seeking a firearm to be genuinely held. However, the Tribunal notes that the wild dogs are a hypothetical risk in relation to hypothetical sheep. The Applicant did not know if they had caused a problem for the neighbouring property or if they had, how the neighbours had dealt with them. Additionally, while the Tribunal appreciates that it may be more humane for all involved to euthanise cattle with the firearms that were subject of the licence application, the need was not demonstrated by the Applicant to be particularly compelling. The Applicant had not explored the possibility of having a neighbour or contract shooter perform the deed, which appears to be necessary only once or twice a year in any event. The public interest need for firearms in the present case are therefore not particularly weighty (cf. Finlay).
Even to the extent the Applicant's private need for the firearms is taken into account, the interests of the whole community are matters for consideration to balance against those needs. As the Tribunal has observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system (Constantin at [33]; El-Chamy at [81]). It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be established (Webb v Commissioner of Police, NSW Police [2004] NSWADT 110 at [32]; El-Chamy at [82]).
It is clear to the Tribunal that the overriding concern of the public interest in the circumstances of this case is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
In this case, for the reasons provided above with respect to the Applicant's domestic circumstances, I am satisfied that a real and appreciable risk to public safety has been established. In this respect, where an applicant associates with a person or persons who have significant criminal histories, that association may create a danger to public safety (El-Chamy at [83], citing Hamid, Dalziell).
The information set out above, including that provided in the Confidential Material, is sufficient, in my view, to establish a real and appreciable risk to public safety. In this case, the danger to public safety may be created by the Applicant's associations with Darren Treyvaud and potential associations and proximity with Jake Treyvaud, both of whom have records of criminal activity and/or violent and aggressive behaviour and both of whom would be or would likely be working and/or living in close proximity to the intended location of firearm storage and/or usage.
Consequently, I find that, at this time, it is not in the public interest for the Applicant to hold a firearms licence. Accordingly, I affirm the decision to refuse the Applicant a firearm on the grounds of section 11(7) of the Firearms Act.
In view of the Tribunal's findings above, there is no need for the Tribunal to state whether it is satisfied that other elements set out in the Firearms Act are met.

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (4)

Cases Cited (12)