Vitale v Commissioner of Police

Evidence

1. The Applicant provided 2 undated statements filed on 25 February 2022 and 4 May 2022, respectively. He gave evidence and was cross examined. Roselyn Vitale, the Applicant's mother, provided undated statements filed on 25 February 2022 and 4 May 2022, respectively. She also gave evidence and was cross examined.
2. The Applicant provided references from: 1. Rose Andre dated 12 February 2021 2. Djordje Dragosavljevic dated 11 February 21 3. Mark Guest dated 15 February 2021 4. Elizabeth Kameljahromi, the Applicant's wife dated 14 February 2021 5. Craig Moroz dated 29 May 2021
3. He also provided reports by: 1. Dr Vin Nayanar dated 8 February 2021 2. David Fox, registered psychologist, dated 15 February 2021 and 1 June 2021
4. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
5. The Respondent also provided evidence from Sergeant Benjamin McIntyre: 1. A non-confidential affidavit sworn on 10 June 2022, with exhibits 2. confidential affidavits sworn on 11 June 2021 (with confidential exhibits) and 10 June 2022. He also gave evidence in a confidential hearing.
6. I do not propose to discuss in open Reasons any material that was presented on a confidential basis. Those parts of the Reasons that are not to be disclosed are identified as "[Not for publication]", and Orders are made accordingly: s 64 of CAT Act.
7. Material filed by the Respondent included four body worn videos (BWV) recordings made by Police when they attended at the Mascot property on 1 August 2021. I viewed that material prior to the hearing and I indicated that I would view it after the hearing, which I did. The Respondent particularly invited my attention to specific parts of the BWV.

Tribunal's approach

1. 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. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (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: s 38(2) of the 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 firearms history

1. On 21 April 2016, the Applicant applied for a category A, B, and H firearms licence. The Applicant listed the genuine reason for the AB licence as recreational hunting/vermin control and sport/target shooting. In support of the genuine reason for recreational hunting/vermin control and sport/target shooting, the Applicant provided evidence of his membership of the Alpine Hunting & Target Shooting Club Pty Ltd. The genuine reason for the H licence was sport/target shooting.
2. On 25 May 2016, the Respondent asked the Applicant to provide a medical assessment completed by a psychiatrist or psychologist to enable him to be assessed as to his ability to hold a firearms licence and to responsibly possess and use firearms. On 11 August 2016, the Applicant provided a report dated 10 August 2016 from a psychologist, David Fox. In reviewing this report, the Respondent noted that the report was "favourable" for the Applicant and that it indicated that there is "no current risk that [the Applicant] is suffering from any condition that would place the public at risk". As a result, on 20 August 2016, the Respondent issued a category AB licence to the Applicant. On 17 August 2017, the Firearms Registry received the Applicant's application for a category H Licence listing the genuine reason as sport/target shooting. In response to this application, on 29 September 2017, the Respondent issued a probationary pistol licence to the Applicant in accordance with s. 16A(1) of the Act. The Applicant again applied for a category H licence on 12 September 2018 which was issued on 28 September 2018. Between August 2016 to September 2018, the Applicant applied for seven permits to acquire firearms. The safe storage address on all of the applications was recorded as [specified address at] Mascot (the Mascot address).

On what basis was the Applicant's licence application suspended and revoked?

1. On 12 October 2020, the Respondent suspended the Applicant's ABH licence for the following reasons: On September 2006, the Applicant was charged with the offences of being armed [with intention] to commit an indictable offence, have custody of an offensive implement in a public place, and custody of a knife in a public place. The charge resulted in the licence holder being discharged under s. 32 of Mental Health Act. The location of storage is known to persons with criminal histories, including firearms prevention orders. Police have identified issues relating to mental health and safe storage of registered firearms with public interest being a factor to suspend.
2. On 13 October 2020, Police attended the Mascot address and seized the Applicant's six firearms, ammunition, magazines and firearms licence pursuant to s. 25(2) of the Act. The Applicant later voluntarily surrendered an additional firearms part to Police.
3. On 4 November 2020, the Respondent notified the Applicant of the decision to revoke his ABH licence. The Reasons set out in the original decision referred to the Applicant being an associate of an individual involved in criminal activity. Concerns were also expressed about the Applicant's past mental health, his expression of concerning views, and recent erratic behaviour. In the Statement of Reasons in the Internal Review the reviewer accepted the evidence of Dr Fox in relation to the Applicant's mental health and no concerns were then expressed in relation to the Applicant's mental health. Before me the Respondent made no submission that the Applicant has any mental health issues that might affect his ability to have a firearms licence.
4. The Statement of Reasons provides the following explanation for the Decision: ...I have considered all of your submissions and attributed weight to the fact that you have never been convicted of a criminal offence, however, there are serious concerns regarding the character of some of your associates. The associates I refer to cannot be named. It is considered incongruous for a firearms licence holder to be associating with persons who present a public risk. It is known that these persons also frequent your residence, which happens to be your safe storage address for your firearms (when in possession).
5. Subsequently, on 1 August 2021, the Applicant was involved in an altercation with his sister, Rebecca Vitale (Rebecca) at the Mascot address (where, at the time, they both lived with their mother). Rebecca refused to provide a written or video statement in respect of this incident, but the Applicant, nonetheless was charged with common assault. An interim Apprehended Domestic Violence Order (ADVO) was made pursuant to Part 7 of the Crimes (Domestic and Personal Violence) Act 2007 to protect Rebecca, naming the Applicant as the defendant.
6. A firearms licence is automatically suspended on the making of an interim ADVO: s 23(1) of the Act. In mid December 2021, Police withdrew the common assault charge referred to above, and on 19 January 2022, the interim ADVO against the Applicant was also withdrawn.
7. In its submissions the Respondent submitted that the Applicant is not a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace, nor is it in the public interest that he hold a firearms licence.

Is the Applicant a fit and proper person to hold a firearms licence?

1. Section 11(3) of the Act requires that the Tribunal be 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.
2. The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
3. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
4. In September 2006, the Applicant was charged with the offences of being armed [with intention] to commit an indictable offence, have custody of an offensive implement in a public place, and custody of a knife in a public place. The charges were laid after the Applicant, at the conclusion of a football game, retaliated against an opposing player who had tackled him, by brandishing a knife. He was discharged under s 32 of Mental Health Act 2007. As this matter occurred some 16 years ago, and now that the Applicant is not considered to suffer any mental illness, I place less weight on this event. It remains though, that the Applicant was prepared to resort to violence when provoked. I have also made some comments below in relation to the evidence of Mr Fox.
5. Then, in 2007 the Applicant allegedly threatened his former partner via a chatroom, but she did not seek an ADVO. In his statement the Applicant denied that there had been any such threats. The allegation was untested, but if true, may suggest a pattern of behaviour inconsistent with the right to hold a firearms licence.
6. As to the events involving Rebecca on 1 August 2021, Rebecca told Police that she and the Applicant had become involved in an argument about COVID vaccinations. She said the Applicant began screaming at her and he had spat at her. In his evidence the Applicant denied that that had occurred, in fact, in his evidence, denied there had been a "disagreement" with Rebecca at all. He said he had gone into their mother's room and he had told her that she should not be pressured by her work to be vaccinated. Rebecca, who had just tested positive for COVID, came to the doorway and "tried to provoke [him]". He said his mother told Rebecca to leave but she wouldn't, saying "Hit me, hit me". Rebecca then called the Police. His mother was distressed, he said, because she would lose her job if not vaccinated. He said his sister was cunning and manipulative. He claimed that she had previously threatened self-harm so that the Police would come and take his firearms.
7. When Police spoke with the Applicant's mother they regarded her, according to the COPS Event as "hostile", although, having viewed the BWV I think "unhelpful" is a better description in that she attempted to downplay the whole incident; she was critical of her daughter and defensive of her son. On the BWV she can be seen telling Police that the Applicant had spat at his sister but that Rebecca had "egged him on".
8. The Applicant's mother, in her evidence, said there was no argument between the Applicant and Rebecca. She said the Applicant was in her room and Rebecca came to the doorway and said words to the effect "don't yell at my mother like that". On the BWV the Applicant's mother clearly told Police that the Applicant was shouting, which is "normal" for him. She said in her evidence that she could have told Police that. She said she may have told Police that the Applicant spat at Rebecca but she did not see him do it nor did she see any spittle on Rebecca.
9. Rebecca can be observed on the BWV as saying that she did not want to be afraid of the Applicant and for him to know that she would call the Police. However, she declined to provide a formal statement to Police. Consequently, Police were unable to proceed with the charges laid against the Applicant. Notwithstanding the dismissal of the charges and the ADVO against the Applicant, 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. In taking criminal conduct into account, the Tribunal may apply a lesser standard of proof than the criminal standard: Joseph at [60].
10. The Applicant denied that there had been any disagreement at all. That clearly is at odds with the contemporaneous account provided by Rebecca to Police, and also the account given by the Applicant's mother to Police. I found the Applicant's mother's evidence before me to be vague and I prefer her contemporaneous account of what had transpired. I accept that there was at least a heated discussion and, on the balance of probabilities, that the Applicant spat at his sister - that would constitute an assault.
11. The Applicant said in cross examination that his sister no longer lives at the Mascot address, she having been "kicked out" by their mother, and while she may be in contact with his mother, he and Rebecca have had no contact at all. The Applicant's mother said that she had not seen Rebecca since 2 days after the events of 1 August 2021 when she asked her to leave; she has not spoken to her in over a month. It was submitted on the Applicant's behalf that the cause of the issue in August 2021 was the interaction with Rebecca, and now that she and the Applicant no longer have contact, and, particularly as she no longer lives at the Mascot address, any risk associated with his relationship with Rebecca has ceased.
12. I was referred by the Applicant's solicitor to Mewburn v Commissioner of Police, NSW Police [2009] NSWADT 24 (Mewburn), where a licence was reinstated when, as in here, none of the incidents the Respondent relied on involved mishandling of firearms. The applicant in that matter was considered to have always had a responsible attitude to firearms and was well aware of the need for safety and proper security of firearms. A significant difference between the present matter and Mewburn and Prevetera v Commissioner of Police [2021] NSWCATAD 133, to which I was also referred, is that in neither of those matters was there confidential material cf: Layland v Commissioner of Police [2022] NSWCATAD 98.
13. The Respondent relied, in particular, on the confidential material annexed to the affidavits of Sergeant McIntyre and his oral evidence in the confidential part of the hearing.
14. [NOT FOR PUBLICATION]
15. [NOT FOR PUBLICATION]
16. [NOT FOR PUBLICATION]
17. [NOT FOR PUBLICATION]
18. [NOT FOR PUBLICATION]
19. The Applicant's evidence, which I accept, is that he does not drink or take drugs. He said he had never been involved with criminals. The Applicant wrote in his statements and said in his evidence said that he does not associate with his sister or any of her friends.

Referees

1. Rose Andre, is the Principal of St Agnes Catholic Primary School, Matraville. She referred to the 2006 incident - a "minor situation". She wrote that the Applicant had sought counselling with a psychologist "during this time". Her account was at odds with the evidence that the Applicant continued to receive counselling well after that time. She wrote that he lived with his family who "are very supportive and a close-kit unit. This characterisation of the Applicant's family is at odds with the evidence about their relationship.
2. Djordje Dragosavljevic wrote that he had been a family friend for 15 years and that he and the Applicant had attended school together. The Applicant had introduced him to shooting as a hobby. He wrote nothing of the Applicant's past offence, and the reference was written before the altercation between the Applicant and his sister.
3. Mark Guest is the Captain of the Alpine Hunting and Shooting Club, the Applicant's club. He has known the Applicant for 3 years. He considered the Applicant to be a pleasant and friendly person and could not recall him ever being aggressive or otherwise engaging in poor behaviour.
4. Elizabeth Kameljahromi, the Applicant's wife wrote that she had met the Applicant in 2018 in her home country of Iran, where it appears she resided at the time of the reference, awaiting a partner visa. Her husband had visited her there a number of times. She referred to the 2006 incident which she regarded as out of character. She wrote that she had seen how her husband handles stresses and obstacles. The reference can be afforded little weight, because, at the time it was written, the Applicant had only visited his wife on occasions as a suitor, and it is unlikely that she could have adequately formed her view on such limited exposure. Further, it was written while her visa status, which necessarily required the support of her husband, was unresolved. Importantly, the reference was prepared before the events of August 2021.
5. Craig Moroz is a neighbour of the Applicant and his family. He wrote of the Applicant being polite and even tempered. He had never had cause to complain about his neighbours. He wrote nothing of the 2006 event and the reference was written before the events of August 2021.
6. I consider little weight can be attached to most of the references for the reasons discussed and because it is unclear whether most of the referees were aware of the Applicant's previous offence and whether, despite those offences they still believe the person to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] - [53]. Further, none of the referees alluded to the Applicant's previous mental health issues (now resolved). All of the references were written before the events of August 2021.
7. In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an applicant "is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace": Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45].
8. For the reasons discussed above, and in particular, because of the view I formed in relation to the confidential material, I am not satisfied that the Applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or to the peace.

Public interest

1. The Respondent also contended that it is not in "the public interest" for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. Having found that the Applicant is not a fit and proper person to hold a firearms licence, it is difficult to envisage circumstances when it can be in the public interest for an applicant to hold such a licence. Nonetheless I turned to consider the "public interest".
2. The term is not expressly defined in the Act or Regulation. It is well-settled though that "the public interest" is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 24(2) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account 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]. Further, when assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. It is clear though that the overriding concern of the public interest in this context 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. The Applicant wishes to have a firearms licence so that he can go shooting as a hobby; he does not need it for rural property management. Private interests cannot outweigh public interest considerations.
3. The Applicant has provided evidence as to his mental wellbeing. His GP, Dr Nayanar, wrote in 8 February 2021 that the Applicant "has a long history of anxiety and depression", and that he is "doing well with intermittent support from a clinical psychologist". In the letter, dated 15 February 2021 Mr Fox, stated that the Applicant "is currently experiencing some level of stress due to his gun licence being revoked as well as other personal concerns" and, paradoxically it seemed to me, that the Applicant did not appear to be anxious or depressed. In Mr Fox's report of 1 June 2021 he wrote that, although the Applicant was not suffering from a mental illness, on testing, he was shown to be a "socially withdrawn person who can see himself as a leader although others may experience him as being more domineering". Mr Fox noted that the Applicant was experiencing "higher levels of stress". He observed that the Applicant "does not have any history of aggressive behaviour towards others or any delinquent behaviours which would indicate non-adherence to rules of law". His evidence ignored the Applicant's conduct in the 2006 incident, although he alluded to this in his 2016 report where the history taken in relation to the incident appears at odds with the Police Facts.
4. Mr Fox's later report was prepared prior to the 2021 charge. It does not refer to any conflict between the Applicant and Rebecca, whereas, from the material before me, in 2018 the Applicant and Rebecca were engaged in an argument such that the Police were called. From the evidence of both the Applicant and his mother, the Applicant and Rebecca were in conflict for some time. I do not think the Applicant has been completely candid with Mr Fox.

Conclusion

1. The Applicant has had two serious charges. It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that, on the evidence, he appears to have retaliated as a result of what he perceived as provocation. There is evidence of volatile relationships with, which have been addressed, to some extent, by the departure of his sister from the Mascot address. Based on the circumstances discussed above in relation to his criminal history, and his volatile relationship with family members, and my reservations in relation to Mr Fox's evidence, I cannot be confident that the Applicant would continue to possess and use firearms only in accordance with the strict legislative requirements, especially if provoked.
2. The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at [28], DP Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I cannot be so satisfied.
3. In all the circumstances, I am reasonably satisfied, based on public interest grounds, that the Applicant should not continue to hold a firearms licence.

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: 14 July 2022