Webel v Commissioner of Police, NSW Police Force - [2023] NSWCATAD 149 - NSWCATAD 2023 case summary — Zoe

NSWNSWCATAD

Webel v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 149

NCAT Administrative and Equal Opportunity|2023-02-15|Before: Maxwell J, Walters J

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2023-02-15

Before

Maxwell J, Walters J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

SW Police Force (Respondent) Representation: Applicant (Self Represented) Makinson d'Apice Lawyers (Respondent) File Number(s): 2022/00118299 Publication restriction: Nil

[2]

Introduction

This is an application for review of a decision by Mr George Webel ("the Applicant") for review of a determination by a delegate of the Commissioner of Police ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Act"). The delegate decided to refuse the Applicant's application for a category AB firearms licence for the genuine reason of Recreational Hunting - Vermin Control.
The Applicant held a pistol licence under previous legislation from 1973 to 1978 and shooters licence from 1990 until 1993. He reapplied for a licence under the Act January 2020. The application was refused in April 2021. The decision to refuse the firearms licence was made on the basis that issue of the licence would be contrary to the public interest.
The decision was affirmed on internal review in March 2022. The internal review reasons for decision noted that: (a) The Applicant had previously been known as Edmund George Webel but he failed to disclose being known by another name in his firearms license application. (b) The Applicant was twice refused an authority for firearms in 1978. He did not disclose this refusal on his application form. (c) In 1985, the Applicant was tried for the murder of his wife, Eva Webel. He was acquitted of that offence. (d) The Applicant was previously a pistol club member, and he was authorised to possess a number of handguns. (e) In April 2004, while in police custody, the Applicant disclosed that his health suffered as a result of being charged and that he had a nervous breakdown. He was prescribed antianxiety medication. (f) Dr Robert Wiles, who has been the Applicant's GP since 2016, stated that he has no knowledge of any mental illness or instability; and that it is his opinion that the Applicant is of sound mind. (g) Information provided by the Applicant suggests that he relocated to Queensland and established a licenced firearms dealership there. (h) In March 2022 a condition was added to the Applicant's NSW driver's licence due to a 'Musculo - Skeletal Disorder'.

[5]

Applicable legislation

Section 9 of the ADR Act provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Act. The Tribunal's jurisdiction includes review of a decision by the Commissioner to refuse an application for a firearms licence.
This application is made under section 75 of the Act and the ADR Act.
The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
The underlying principles of the Act provided clear guidance as to how it is to be administered generally. Section 3(1) provides: (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms.
The Commissioner, and therefore the Tribunal, has discretion in regard to the issues to be decided in this matter and the Act provides no guidance on how that discretion should be exercised. However, in Minister for Immigration and Citizenship v Li [2013] 297 ALR 225, the majority of the High Court stated at paragraph [67]: [W]here discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority [[1998] HCA 28] requires nothing less. ...
Section 11(3)(a) of the Act prescribes that a firearms licence must not be issued unless 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.
Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if she considers that issuing of the licence would be contrary to the public interest.
Section 12(1) of the Act provides that the Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.
The Applicant's application for a firearms licence nominates his "genuine reason" for a firearms licence as "Recreational Hunting/Vermin Control". Relevantly, section 12 provides: 12 Genuine reasons for having a licence (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. ... (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm 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. Table Reason: recreational hunting/vermin control The applicant must - (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, or (b1) produce proof of permission given by a land manager within the meaning of the Forestry Act 2012 to shoot on land in respect of which the land manager is authorised to exercise functions as land manager under that Act, or (c) be a current member of a hunting club approved by the Commissioner in accordance with the regulations. The regulations may provide for the manner and form in which any such permission is to be given, the extent to which it operates, and how it is to be produced as evidence by the applicant. A person does not, so long as the person is authorised to give permission to shoot on land referred to in paragraph (b) or (b1), incur any liability merely because the person gives the applicant permission to shoot on the land concerned. ...
As noted, the Commissioner contends that the Applicant is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal.

[6]

Fit and proper person

The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at paragraph [22].
The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

[7]

Public interest

Section 11(7) of the Act provides: 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 noted, the Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
The "public interest" allows issues going beyond the character of the Applicant to be considered. These may include concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to "public interest" is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
In considering the public interest, regard must be had to the underlying principle of the Act. The licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The Tribunal must give proper, genuine, and realistic consideration to each of the relevant matters. A decision maker should not shy away from an exercise of that discretion merely on the grounds that the licensee may suffer hardship and or inconvenience: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at paragraph [22].
The public needs to be confident that those who are afforded the privilege of a firearms licence will comply with the legislative requirements.
As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. ...
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP 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. Although Ward was a case on the "fit and proper person" test, the formulation has been held to also apply to the public interest test: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at paragraph [23].
It is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be considered. Minimal, fanciful, or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Risk to the public includes risk to the Applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117.

[8]

Continuous and responsible control over firearms

The Respondent also contends that the Applicant may not personally exercise continuous and responsible control over firearms.
Section 11(4)(c) of the Act prescribes that the Commissioner must not issue a licence 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 intemperate habits or being of unsound mind.
The term "reasonable cause to believe" in this context was considered by the Tribunal in the matter of LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at paragraphs [41] - [43] where the Tribunal stated: 41 The term "reasonable cause to believe" has been considered by the courts in contexts other than those the subject of this application. For example, in the context of discovery under Order 15A, Rule 6 of the Federal Court Rules, in Austrac Operations Pty Ltd (in liq) v New South Wales [2003] FCA 1013, BC 200305547, Emmett J stated: "[10] There is no dispute as to the nature of the task that arises under r6(a). The words, 'where there is reasonable cause to believe that the application has or may have the right to obtain relief' are not satisfied by mere assertion. The belief requires more than mere suspicion or conjecture. On the other hand, it is not necessary for an applicant to establish even a prima facie case. It is necessary, however, for the applicant to show objectively that there is reasonable cause for the relevant belief. It is not necessary to demonstrate whether or not the applicant has the belief". 42 In New South Wales v Taylor (2001) 178 ALR 32, the High Court considered the term "no reasonable cause to believe" as it appears in s.151A(5) of the Workers Compensation Act 1987 (NSW). At [15] of the joint judgment of Gleeson CJ, McHugh and Hayne JJ, they stated: "It is true that the notion of 'reasonable cause', although often used in legal instruments, is an awkward expression. A cause is a cause is a cause. Beliefs about causes may be reasonable, but causes are neither reasonable not unreasonable. They are facts even if, as current legal doctrine insists, they often involve value judgments." 43 In my opinion, the abovementioned principle in Taylor and test enunciated by Emmett J in Austrac equally applies in that the Tribunal, as was the Commissioner, must objectively be satisfied, from established facts of the matters set out in paragraph 24(2)(a) of the Act. These matters are that LY's domestic circumstances are such that she may not personally exercise continuous and responsible control over her firearm.
In my view, to have "reasonable cause to believe" there must be more than mere suspicion or conjecture.
The term "unsound mind" is not defined in the Act. Deputy President Hennessy considered the expression in Sweet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 185. She stated at paragraphs [25] - [27]: 25 The first question is whether Mr Sweet post traumatic stress disorder amounts to "unsound mind" given the purpose of the legislation. Mr Sweet has a recognised mental condition which can be regarded as a mental disorder. It is not trivial in its nature. 26 One of the principles of the Act, as set out in s 3(1)(a), is to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. 27 The term "unsound mind" must be interpreted in the context of this principle. To be of "unsound mind" a person's mental condition must at least have the potential to put public safety at risk if that person has the possession or use of a firearm. ...

[13]

The murder of the Applicant's wife

The Applicant's wife was murdered in October 1983. As noted above, the Applicant was charged and acquitted of the murder. However, the Respondent submits that, in these proceedings, the Applicant is not entitled to contend that he did not murder his wife. This submission is based on views expressed by Maxwell J in R v Edmund George Webel (Unreported, Maxwell J, Supreme Court of New South Wales, 9 February 1988).
In that matter, Maxwell J dealt with an application by the Applicant's then mother-in-law for compensation pursuant to section 4 of the Criminal Injuries Compensation Act 1967. Section 4 stated: (1) On the acquittal of, or dismissal of an information against, a person accused of any felony, misdemeanour or other offence, the Court or Judge before whom that person was tried may, on application by a person aggrieved by reason of the commission of the offence, grant a certificate stating the sum which they or he would have directed to be paid to the aggrieved person by way of compensation for injury had the accused person been convicted of the felony, misdemeanour or other offence and had the application been an application made by the aggrieved person under the provisions of section four hundred and thirty-seven or subsection three of section five hundred and fifty-four, as the case may be, of the Crimes Act 1900, as amended by subsequent Acts, for the payment of that compensation. (2) A certificate shall not be granted under subsection one of this section where the sum referred to in that subsection amounts to one hundred dollars or less. (3) An aggrieved person to whom a certificate under subsection one of this section has been granted may make application to the Under Secretary for payment to him from the Consolidated Revenue Fund of the sum specified in the certificate.
In determining the application, it was necessary for Maxwell J to consider whether, had the Applicant been convicted, he would have directed that compensation for injury be paid to the aggrieved person. Justice Maxwell concluded: l am satisfied on the balance of probabilities that an offence was committed. So far as the trial jury was concerned, their requirement was to be satisfied beyond reasonable doubt that the particular offence had been committed. It suffices to say that having presided over the trial and having again read the summing-up, whilst it was open to the jury to acquit the accused I am satisfied on the balance of probabilities that the respondent was guilty of an offence and, therefore, the Applicant is entitled to the order sought.
The Respondent referred to a number of authorities in support of the submission that: Accordingly, prima facie, the decision in R v Edmund George Webel (Unreported, Maxwell J, Supreme Court of New South Wales, 9 February 1988) provides this Tribunal with adequate material for its own conclusion that the Applicant murdered his wife. If the Applicant wishes to challenge that finding, the Tribunal should hear the challenge and give such weight to it as the Tribunal thinks fit. The finding of Maxwell J provides a strong prima facie case which throws a heavy burden on the Applicant should he seek to rebut the finding.
The Respondent further submitted: [T]he Applicant remains a suspect in the unsolved homicide of his wife, Eva Webel. Although the Applicant was acquitted of the charge of 'Murder', the fact that the Applicant remains a suspect in the unsolved homicide investigation is clearly information that gives rise to an indication that it is against the public interest for the Applicant to hold a license. As noted by the Commissioner, there is no onus of proof attached to the administrative function of refusing an application. If there is information available that gives rise to an indication that it is against the public interest for an Applicant to hold a license, those concerns must be taken at their highest value. ... Clearly, there is considerable risk to public safety in permitting a person who remains a suspect in the investigation of a serious violent crime to be granted the privilege of holding a firearms license.
The Respondent submitted that the views expressed by Maxwell J indicate that there is a high degree of probability that the Applicant murdered his wife. Further, the fact that the Applicant evaded conviction raises concerns that there may be other offences that have not been disclosed.

[27]