Weisbord v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-09-18

REASONS FOR DECISION

By application dated 21 July 2022 the Applicant, Alexander Weisbord, applied for a Category AB firearms licence. On 3 August 2022, the application was refused by the Respondent. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act (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. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (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 sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Evidence

The Applicant provided an affidavit dated 25 June 2023, gave evidence and was cross examined. He provided a number of other documents in support of his Application for Review: 1. Statement of Carissa O'Sullivan, the sister of Jodie O'Sullivan dated 28 August 2023 2. Text messages between the Applicant and the Applicant's former partner, Jodie O'Sullivan 3. Certificate of Completion Baton and Handcuff Course - Oink Security Services 4. Text chain between the Applicant and "Dane" from 12 September 2018 5. AFP Digital National Police Certificate dated 2 September 2022 6. SSAA membership letter dated 21 July 2022 7. Text message and photograph regarding the Applicant's assistance at a motor vehicle accident 8. Letter from Martin Hennessy, Property and Housing, Uniting Asset Management, dated 9 July 2021 9. Contractor pass Universal Fire Protection P/L, issued by Department of Health 10. SES Volunteer pass valid to 9 March 2015 11. Medical letter of support from Dr Shreyas Prabhala dated14 March 2023 12. Discharge summary Eastern Suburbs Community Health Service dated 27 January 2019, and follow up note dated 30 January 2019 13. Photograph of bottle of oil of cloves 14. Letter from Maggie Sukkar, counsellor 15. Letter from TGA, Department of Health, to Dr Balafas and schedule with approval to prescribe medicinal cannabis 16. Prescribed (cannabis) vape dated 26 October 2020
References were provided from: 1. Kim Teeling 2. Angelique Psarakis 3. Paul Byrne of Amdel Servies, a former employer of the Applicant, dated 11 February 2020 4. Alexander Salaivao of Atlas Security (undated)
The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.
The Respondent also provided material which it had earlier filed and over which confidentiality Orders were made on 21 June 2023. 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 the Civil and Administrative Tribunal Act 2013. (CAT Act).

Tribunal's approach

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].

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

In refusing the Applicant's application on the basis that it was not in the public interest that he hold a firearms licence, the Respondent relied on the Applicant having been charged with having custody of an offensive implement in a public place in 2005, and that in January 2019 he was observed to be on the wrong side of the fence at the Gap. These matters are discussed below.
On internal review, in addition to the above matters, the Respondent relied on the Applicant having been charged in 2010 with 8 offences in relation to knives, and intimidating another road user in 2018. All these charges were dismissed. These additional matters are also discussed below.

On what evidence does the Respondent now rely?

The Respondent relied on the Applicant's record of Police interactions over a 20-year period. These are conveniently grouped, as follows:

Interactions with Police 2003 - 2010

On 30 December 2003, the Applicant was a person of interest in an armed robbery in which two victims were threatened with a screwdriver and money was stolen. The Applicant said in his evidence that he had been walking past on his own when Police pulled over and said he matched the description of a person of interest. The victims were not confident in their identification of the Applicant and, consequently, no charges were brought against him.
On 19 July 2004, the Applicant was suspected of possessing illegal drugs after he reportedly was loitering outside a unit block. Nothing adverse was found by Police when the Applicant was searched and no charges were laid against him. Police noted the Applicant's being "known for robbery offence", which presumably referred to the matter on 30 December 2003, and a "history of 10 pawn/sell" incidents. There was no evidence that the pawn/sell incidents were illegal. The Applicant submitted that he was studying audio/engineering at university at this time and would routinely swap, buy and sell items, predominately video games, at his local pawn shop. Later, in about 2010, the Applicant gained employment at Happy Hockers and submitted that, had any of the items he had pawned or sold at the shop been subsequently found to be stolen, he would never have been able to secure employment at the pawn shop, due to the rigorous regulatory framework monitoring pawnbroking businesses for stolen goods.
On 3 February 2005, the Police responded to a '000' call regarding a home invasion involving violent domestic, with several people said to be armed with baseball bats. The Applicant was found with a baseball bat in the passenger seat of a vehicle near the scene. When Police asked about the bat, he reportedly said that he had brought it with him as his friends said they had been in a fight and they were going after the other group. During an interview with Police, the Applicant stated he had brought the 2 bats on his own volition, "in case he had to defend himself". The Applicant denied any knowledge whatsoever of any 'domestic violence incident' or 'home invasion' and submitted that his only involvement was accompanying his friends in their vehicle at their request, without prior notice, and he was asked to bring a baseball bat in case they needed to defend themselves from the group of boys that had allegedly attacked their friend. The Applicant said he reluctantly joined his friends in the car with a bat. In his evidence the Applicant pointed to what he considered were factual errors in the Police report. He denied that he had told Police that his friends had said they were going after the other group. He said that a friend and his girlfriend had people trying to get into their house and had called the Police. Not knowing how long it would take the Police to respond, they contacted their friends to go to their aid.
The Applicant was charged with possession of an offensive implement in a public place, but the charge was dismissed, without conviction, with the imposition of a 12-month good behaviour bond, with which he complied. While the Applicant conceded that, in retrospect, he ought to have exercised greater caution when deciding who to associate with in his late teens, and in particular whether to accompany them on this occasion. It was submitted that his limited involvement in the incident should have no impact on the Tribunal's consideration of his present character and suitability to possess a firearms license.
On 24 January 2006, the Applicant was visiting a friend's unit. Soon after he arrived, the unit was subject to a Police search, during which Police located a small quantity of cannabis leaf, a small quantity of mixed cannabis and tobacco, a large glass bong and a "Taoist Priest" firework (a pyrotechnic device under the Explosives Act 2003). No charges were laid against the Applicant.
On 13 September 2008, Police again attended the same unit, when the Applicant was the only person there. Police noted that the room smelt strongly of cannabis at the time and was quite smoky, and that the Applicant reportedly said that he spent most of his time there and basically lived there. No charges were laid against the Applicant.
On 27 May 2010, the Applicant was stopped for a random breath test. In his car Police located radios, handcuffs, a number of knives, and a machete. In his evidence the Applicant denied that the machete was loose as reported - it was attached to his SES bag, and that and all the other knives were part of his call-out kit. The Applicant also allegedly had what appeared to Police at first to be an AFP badge. This was subsequently identified as being a 'Ranger Badge' which bore the NSW Coat of Arms, which is consistent with the Applicant being a NSW Ranger working at Darling Harbour and the Rocks. The Applicant was asked in cross examination if it was needed for his work and he said that he can use it when undertaking covert security work, by which, I understood, when not uniformed. He said that he carries it generally and produced it before me. In his submissions the Applicant observed that he was employed as a security guard since 2007 and volunteered with the SES.
The Applicant also had multiple other items in the vehicle that were noted as being similar to Police paraphernalia, including dark blue epaulettes, a dark blue "handmade" security badge with the Applicant's name on it. The Applicant's evidence was that all the paraphernalia referred to was purchased from the Sydney-based security and police wholesale supplier, 'Signal One', which the Applicant claimed, states on its website that all items can only be purchased with appropriate ID and documentation which confirms the purchaser's authority to carry such items, and that this is vetted by the AFP. The handcuffs, for example were acquired through Signal One and he pointed to his authority to have handcuffs.
As a result of this incident, the Applicant was charged with eight counts of possession of a knife in a public place, two counts of possession of an offensive implement in a public place. The Applicant allegedly also admitted to taking cocaine the night before and he was charged with one count of driving a motor vehicle with a prescribed illicit drug present in his blood. All these charges were dismissed following a Local Court hearing.
While no detail was provided about the dismissal of the charges it was submitted that the Court was satisfied that the Applicant had lawful reason to be carrying the items described in accordance with his employment as a security guard and volunteer with the SES. There was no explanation in relation to the dismissal of the drug charge, which, according to Police Facts Sheet, had been laid as a result of forensic testing.
Less than one month later, on 16 June 2010, the Applicant was pulled over by Police after they had noticed a non-functioning brake light on his vehicle. Inside the vehicle, the reporting officers observed a number of items which the Applicant said related to his work in security and the SES, including protective gear and clothing belonging to the SES. No charges were laid against the Applicant. The notes include "Intels: Impersonate police". The Applicant has never been charged impersonating a Police officer.
Again, approximately one month later, on 24 July 2010, Police were alerted by an off-duty officer that the Applicant was working as a security guard, which was outside his assigned duties. However, it was identified that he was working as a traffic controller only. Police reminded the Applicant about his duties and undertook searches for prohibited items, but none were found. No charges were laid against the Applicant.

Applicant's use of LED lights on his vehicle

When the Applicant was pulled over on 27 May 2010 his vehicle had lights positioned near the window that were said to have flashed red when activated. In his evidence the Applicant denied that the lights flashed red; the front flashed amber and the rear flashed pink and purple. He said the lights are not capable of having the colours altered. These too were acquired at Signal One and he said red/blue lights would not have been sold to him as he was not a Police officer.
The Police report also notes that when the Applicant was released from custody, the officers mentioned that they initially mistook his vehicle as an unmarked police vehicle, he was noted to have "smirked and giggled", which the Applicant denied. The Applicant observed in his evidence that the lights were at no stage confiscated, nor was he charged in relation to them.
On 6 July 2012, the Applicant was stopped when officers noted the LED lights affixed to the corners of his rear window which were said to be "the same type" as those fitted on NSWPF vehicles. In his evidence the Applicant said the lights were white and orange. On closer inspection, Police noted that the lights could "easily be adapted to flash red and blue", ie like NSWPF vehicles. The Applicant said it was "an uneducated falsity" to suggest the lights were convertible to Police colours. These were different to the lights when he had earlier come to attention - he had upgraded. He said the Police recommended he dismantle them - as his car might be mistaken for a Police vehicle and vandalised. Police searched the vehicle and found a number of items similar to police equipment such as numerous torches in the style of MAG torches and a black jacket with silver and gold buttons. In his evidence the Applicant observed that he was still in uniform from his shift the previous night.
On 15 September 2012, Police stopped the Applicant, having observed that his vehicle had LED dash lights of a similar style to Police lights attached to the rear windscreen of his vehicle. The Applicant indicated were for his security work. The lights were found to be capable of flashing amber only.
On 27 September 2012, Police observed the Applicant travelling "well above the posted speed limit" and they noted that the Applicant had a light bar fixed on the back window in a similar style to unmarked Police vehicles. The light bar was not activated or in working order, but Police asked for it to be removed. The Applicant indicated the light bar was for his work as a security guard and flashed amber and white.
The Applicant came to attention again in 20 May 2020, when he was pulled over by Police, reportedly being observed to be exhibiting unspecified "highly suspicious behaviour". Police noted that LED lights were affixed to the Applicant's vehicle, and that these could be activated to flash continuous white and yellow. The Applicant also told Police he had smoked a 'joint' the night before.
As to flashing lights generally he said he uses them for security at events and when doing traffic control and also when patrolling building sites. For these occasions he often uses his personal car, which is why they were fitted to his vehicle.
He said in his evidence that he was last questioned about his vehicle's lights 2-2.5 year ago and the officer 'laughed' because they were nothing like Police lights. The incident was not recorded. The lights remain on his vehicle. The Applicant said that nowadays he uses them should he encounter some traffic accident, as, it seemed to me, elaborate hazard lights.

Alleged aggressive conduct in a motor vehicle

On 12 September 2018, a report was made of a road incident, in which the Applicant had allegedly driven aggressively, stopped another driver and approached the other driver's window in a hostile manner. Plain clothes Police officers intervened and "de-escalated" the situation. The Police report notes that the other driver was visibly shaken, but unharmed, by the incident. The Applicant is recorded as having said that he was a delivery driver for Harvey Norman, and that there had been an incident involving a stolen washing machine on one of his deliveries. The Applicant contended that the information in the report was incorrect. He recalled being pulled over by Police and was challenged by them for having "accelerated quite aggressively"; importantly, he said, there was no other driver involved, nor has he ever worked for Harvey Norman. The Applicant denied any involvement in this alleged incident, despite Police records clearly identifying him, presumably on producing his licence. The incident did not give rise to any charge against the Applicant.

Incident at the Gap

On 27 January 2019, the Applicant was found by Police at the Gap at Watson's Bay, described by Police as a 'well-known suicide spot'. In his evidence the Applicant observed that it is also a popular (scenic) lookout. According to Police he was found "near the edge" on the other side of the safety railing, sending pictures to his then partner, showing him threatening to commit suicide. The Applicant was taken by ambulance to hospital for a mental health assessment. The Applicant was cleared by hospital staff.
In his evidence the Applicant said that there is a distance of about 20 metres from the barrier to the edge of the cliff and that he had been nowhere near the edge. He did not know he had set off an alarm which caused Police to attend. He said he was not over the fence for very long - just long enough to take a photograph. He agreed with the description by Police that he was shaking and appeared distressed but said this was to do with his relationship which "blew up" while he was there. He said he told Police that he wanted to scare his partner so that she would leave him alone. He conceded it was a stupid thing to do. He observed that he did not threaten anyone's safety and nobody, including himself, was at risk of danger. He agreed in cross examination that his action demonstrated a lack of judgment, but said he feels he is still being penalised for a stupid mistake over 4 years ago.
The Applicant's account was that he was in a romantic relationship with for approximately 12 months during 2018-2019. The relationship, however, was 'toxic'; they would exchange text messages taunting each other and he provided an example of one such exchange. The Applicant requested his partner to leave him alone and not contact him, but she continued to manipulate and antagonise him. In an effort to send a strong message as to how severely he was being impacted by her conduct, the Applicant decided to travel a short distance to the Gap at Watsons Bay, photograph himself there and send it to his partner to suggest that she was causing him to consider suicide. He said that in fact he had no intention of committing suicide and at all times stayed well away from the edge of the cliff. This is consistent with the hospital discharge notes. In the internal review decision significant weight was placed on this event as demonstrating the Applicant's "intent was to instil fear in [his] girlfriend, causing a psychological response from her for [his] own benefit."

Applicant's drug use

On 27 May 2010 the Applicant allegedly admitted that he had used cocaine, and, it appears that this was confirmed by drug testing, although the charge was dismissed. In his evidence the Applicant denied that he had told Police that he had used cocaine the previous night. He also disputed the Police observations that he was pale and his eyes were glazed. He demonstrated that he is naturally fair and that his eyes are sensitive.
On 5 and 12 September 2018, when the Applicant was pulled over by Police, he admitted to having used cannabis, but returned a negative result when tested.
When Police pulled the Applicant over on 20 May 2020, the COPS Record indicated that the Applicant was "vigorously rub[bing] the inside of his mouth with his finger." Police considered the may have been attempting to discard or disguise his use of drugs, but it is unclear how rubbing the inside of one's mouth may facilitate such concealment. The Applicant submitted that at this time he had severe toothaches which ultimately resulted in a root canal treatment, and what Police observed was him rubbing clove oil on his gums as that assisted with the pain. The Applicant reportedly had emergency dental surgery by his dentist, Mr Stuttner in June 2020. I observe that the Applicant's solicitor attempted to provide evidence of that treatment but it was unable to be located. It was submitted that had the Applicant been attempting to discard prohibited drugs or alcohol, that would be inconsistent with the Applicant volunteering information that he had consumed a cannabis the night before.
The Applicant's evidence was that he has suffered from ulcerative colitis since he was a child. He had received medical advice that cannabis may assist with pain associated with the condition. The Applicant subsequently was prescribed medicinal cannabis and received his first script by early to mid 2020. Prior to that time he would self-medicate with marihuana.
On 13 February 2021, the Applicant was stopped and questioned by Police. Police observed that the Applicant's eyes were "glazed over" and cannabis could be smelt; he was considered to have "used evasive movements" to avoid the drug detection dog. The Applicant admitted to being in the possession of a 'joint', which he said was for medicinal purposes. In cross examination the Applicant pointed to the ongoing expense of medicinal cannabis, which, in addition to assisting his ulcerative colitis, assists in pain management for his knee problem which is the subject of a current workers compensation claim.

References

The Respondent was critical of the references provided by the Applicant and submitted that I should place little weight on them, noting that they do not address the issues that led to the refusal of the Applicant's firearms licence. The Respondent submitted that it is not apparent that the referees were aware of the Applicant's activities, and consequently the references should be afforded little weight. Specifically, the Respondent noted that Mr Salaivo and Ms Psarakis' references do not address the issues that caused the refusal of the Applicant's firearms licence. Similarly, Mr Byrne and Ms Teeling's references make no reference to the firearms licence, or the issues that were the reasons for the refusal of the Applicant's licence.
In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 the Appeal Panel said at [41] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution.
In this matter however, there is little "negative history" of which referees might be aware. The only "criminal history" is in relation to the charge in relation to the baseball bat - now nearly 20 years ago and when the Applicant was aged 18.
All referees wrote, effectively, of the Applicant's kindness, trustworthiness, strong work ethic and his safety orientation.
I accept that Ms O'Sullivan was clearly in a position to have an understanding of the relationship between her sister and the Applicant, which precipitated the events at the Gap in 2019. The Applicant's actions at the Gap (which have been identified as being of concern to the Respondent), were, I accept, because of the Applicant's difficult relationship with Ms O'Sullivan's sister. Notwithstanding her family relationship she still regards the Applicant fondly and blames her sister for victimising the Applicant, who she regards as gentle, softy spoken and very passionate.
The Applicant said he still sees Maggie Sukkar, the counsellor who provided a report in support of his application. He sees her in relation to his workers compensation issues and in relation to family matters. He said he has not been diagnosed with Depression and Ms Sukkar did not refer to the Applicant as being depressed. Ms Sukkar wrote that she had known the Applicant for 10 years and had provided the Applicant with counselling. She wrote of his dependability and compassion and that he has a 'cool head". She observed that they had discussed many times his interest in joining the Police Force.

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

Before me the Respondent submitted, in addition to the contention that it is not in the public interest that the Applicant be granted a firearms licence, that the Applicant is not a fit and proper person to hold a firearms licence.
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.
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].
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.
The Respondent contended that the Tribunal should not be satisfied 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. The Respondent relied on events between 2003 and 2010 and other events, detailed above.
As observed, with the exception of the events of 3 February 2005 and 27 May 2010, none of the incidents during which the Applicant came to Police attention between 2003 and 2010 gave rise to any charges being laid against the Applicant. In any event, those matters are now up to 20 years old. I attach little weight to these matters.
In relation to the matter in February 2005, while the Applicant was charged with possession of an offensive implement in a public place in relation to the bat, the charge was dismissed, without conviction, with the imposition of a 12 month good behaviour bond. I observe that this occurred now 18 years ago, at a time when the Applicant was aged 18. I attach little weight to this transgression.
In relation to the matter in May 2010, notwithstanding the dismissal of the charges 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 at [62] - [64]. It is the conduct, rather than whether there is a conviction, which is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. I consider that the Applicant has provided an adequate reason for his having the items about which Police expressed concern and am not satisfied, on the balance of probabilities, as to the conduct alleged to give rise to the charges. There is no clear explanation, however, for the dismissal of the drug charge apart from possible acceptance of the Applicant's evidence of chronic pain in relation to his life-long ulcerative colitis, for which he self-medicated with cannabis. More problematic is the allegation in relation to the use of cocaine, supported by forensic testing, but which was nonetheless dismissed. The Applicant, in his evidence, said that the Magistrate was highly critical of the officer in charge of the investigation, but there were no details available to me as to whether this was the case in respect of the forensic testing. I am unable to make a determination, even on balance, in relation to that matter. In any event, I observe that as the alleged transgression occurred more than 13 years ago.
As to the Applicant's accumulation of uniform and other kit, I accept that he had roles as a security guard, a ranger and an SES volunteer, and that each role necessarily attracted the use of robust and functional wearable gear and equipment. I accept too, that the Applicant is trained in the use of equipment that requires a licence to carry, such as batons, handcuffs, and that he has completed extensive security training including conflict resolution and de-escalation tactics and that this too, explained his possession of the gear. I find the Applicant's explanation of his acquisition of such material and its continued presence in his vehicle to be plausible.
As to the Applicant's use of LED lights on his vehicle I accept that at no time did the Applicant have lights which were identical to those used by Police and, that his vehicle was fitted with differently coloured lights. There was no evidence that he inappropriately flashed the lights.
In relation to the alleged aggressive conduct in September 2018, I observe first, that alleged event is now some 5 years ago. The Applicant was said to have approached another driver's window "in a hostile manner" although there was no evidence as to in what manner this was said to have occurred. The other driver was said to be visibly shaken by the incident. The Applicant denied that an event involving another driver occurred at all, noting that the Police account recorded him as being a delivery driver for Harvey Norman whereas the Applicant denied that he had ever worked for Harvey Norman. Against his denial, I accept that it is standard practice for police officers to ask for a drivers licence when a motor vehicle is stopped by Police and that Police had most likely relied on the driver producing his licence. I observe that the alleged incident did not give rise to any charge against the Applicant. In view of the paucity of evidence about the alleged aggressive conduct, I cannot be satisfied that the Applicant did any more than come to Police attention while vigorously overtaking, and that he was pulled over for engaging in that conduct.
In relation to the incident at the Gap in January 2019, it did not appear that the Respondent relied on the incident as indicative of the Applicant's suicidal ideation, but rather that the event demonstrated the Applicant's intent to instil fear in his girlfriend.
I accept the evidence of the Applicant and Carissa O'Sullivan that the relationship between the Applicant and Carissa's sister was 'toxic' and that they had a history of manipulating and taunting each other. The Applicant, however, wanted to extricate himself from the relationship, but his partner continued to contact and taunt him. I accept that, in an effort to send a strong message to his partner, the Applicant photographed himself at the Gap, sent the photograph to her, suggesting that she was causing him to consider suicide. Having heard the Applicant's account, I reject the characterisation of the Applicant's conduct as an intent to instil fear in his girlfriend, causing a psychological response from her for his own benefit; he did not intend to instil fear as asserted, but only, perhaps somewhat dramatically, expressed his wish to be left alone.
There were several references to the Applicant's drug use. I accept that the Applicant is a long-term sufferer of the debilitating condition of ulcerative colitis, for which he is prescribed medicinal cannabis. I accept that prior to that time he self-medicated with marihuana.
There was some equivocal evidence about the Applicant's possible use of cocaine. For example, in May 2010 he allegedly told Police that he had used cocaine, and, it appears that, although this was confirmed by drug testing, the charge was dismissed.
The Applicant is said to be highly regarded in the industry for his skills and abilities as a security guard, commitment to public safety and willingness to go the extra mile to assist those in need. The Applicant's unchallenged evidence was that there have been multiple occasions in which he has assisted Police when they have been outnumbered; he claimed that he had assisted in apprehending known drug dealers; while on patrol in Kings Cross he has kept members of the public away when he has noticed a person to be carrying concealed weapons. During his long career working in volatile situations in the security industry, there was no evidence that he had any complaints whatsoever made against him.
The Applicant was unchallenged in his claim that he is very respected in the industry and understood that one venue changed their security contractor when the Applicant changed the company he was working for. He said he had supervised and managed teams of hundreds of security staff overseeing large public events such as NYE, in precincts such as The Rocks and Darling Harbour. That role has also entailed him liaising with control rooms, police, ambulance and other emergency services teams.
I accept that through his experience as a security guard and, particularly as an SES Volunteer, the Applicant has demonstrated his ability and commitment to protecting the community. The Applicant has taken part in numerous multi-agency rescue operations and completed a variety of rescue and first responder emergency training, including participating on behalf of the SES in 'mock rescue games', held between the different Australian emergency rescue agencies.
The Applicant also claimed that on approximately 5-6 occasions he has acted as a first responder in motor vehicle crash sites, utilising his public safety skills by stopping in the crash lane, donning his vis, instigating welfare assessments, rendering emergency first aid, and liaising with emergency workers as they arrive on site. The Applicant said he frequently travels with a fire extinguisher, emergency traffic cones, safety seatbelt cutter and first aid kits in anticipation of these situations arising. The Applicant provided photographs and a thank you email from a person he had assisted.
For the reasons discussed above, I am comfortably 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.

Public interest

The Respondent contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act.
The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
I have found 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. The "public interest" factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
The principle in Ward is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant said that he seeks a firearms licence because refusal of a firearms licence may impede his ability to join the Police Force or to further his employment by becoming licensed as an armed security guard. The Applicant also said that if his licence is refused he will no longer be able to participate at the shooting range as a guest of his close friends and this would impact upon his social life. Private interests such as these, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, it appears the Applicant may have engaged in some rash conduct as a young person. In more recent times, he may have sent ill-considered messages to his partner in the course of his efforts to disassociate herself from her; no physical harm was caused to her, nor, from her sister's evidence, could I come to a view that she was otherwise affected by the message. While he has a collection of knives (including a machete) there is no evidence that these have been used improperly or other than in the course of his roles. As to his collection of Police-style paraphernalia, as I have found, there is no adverse conduct involved in the acquisition and possession of such material.
In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that 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 taken into account. It is clear 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 evidence, in my view, does not establish a real and appreciable risk to public safety. In fact, the Applicant's conduct, especially in relation to his volunteer work and his intervention with people in distress, is directly opposed to the proposition that he might present some risk should he hold a firearms licence.
I therefore find that it would not be contrary to the public interest for a licence to be issued to the Applicant.

Conclusion

My conclusion is therefore that the Applicant is a fit and proper person to hold a firearms licence and, in all the circumstances, I am reasonably satisfied, based on public interest grounds, that there is no reason for the Applicant not to hold a firearms licence.

DECISION

The decision under review is set aside and the Applicant is granted a Category AB 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: 27 September 2023

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