Whitfield v Commissioner of Police, NSW Police Force

Jurisdiction

1. No Notice of Revocation appears to have been issued. Rather the Internal Review Statement of Reasons sets aside the decision to impose conditions on the licence and substitutes that decision with a decision to revoke the licence.
2. Ordinarily a Revocation Notice would issue under the provisions of the Firearms Act section 24. Relevantly section 24 provides: 24 Revocation of licence(cf APMC 6, 1989 Act s 36, 1990 Reg cl 27) (1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order. (1A) The Commissioner must revoke a licence that is held for the purpose of employment as an armed security guard (within the meaning of the Security Industry Act 1997) if - (a) the licensee has failed to undertake any firearm safety training required under this Act or the regulations, or (b) in the case of a licensee who holds a class 1F licence or a visitor permit authorising the licensee to carry out security activities of a kind authorised by a 1F licence under the Security Industry Act 1997 - the 1F licence or visitor permit is revoked under that Act or the licensee contravenes any condition of the firearms licence under this Act. (2) A licence may be revoked - (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee - (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.. ….
3. Clause 20 of the Firearms Regulation 2017 provides: 20 Revocation of licence - licence not in the public interest The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
4. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person, (b) a condition imposed by the Commissioner on a licence or permit issued to the person, (c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order), (d).. (e)… (f)… (g)… (Emphasis added)
5. No submission has been made that any failure to issue a Notice of Revocation creates any problems for the operation of s 24 of the Firearms Act or Clause 20 of the Regulation. The Tribunal infers that no such Notice issued as there is nothing of that nature filed in the s 58 documents.
6. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
7. The Tribunal has jurisdiction under the Firearms Act as noted at [25] above.
8. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

1. The parties agree that Mr Whitfield filed his application for Administrative Review on 22 June 2022. As the Internal Review was only received on 14 June 2022 (even though it was dated 20 April 2022) the parties agree that in the absence of any evidence to the contrary to suggest that it was served earlier than 14 June 2022, then the application to the Tribunal was filed within the period provided to lodge an administrative review application with the Tribunal.

What issues do these proceedings raise for determination?

1. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

1. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

• Exhibit 'A-1'. Statement of Troy Robert Whitfield dated 23 October 2022.
• Exhibit 'A-2': Expert Report of C Camacho Consultant Psychologist dated 6 August 2022.

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act.
• Exhibit 'R-2' Supplementary Bundle of part redacted COPS events filed 25 October 2022.

1. Both parties were legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Whitfield was subject to cross-examination at hearing.
2. The Commissioner also sought to rely on confidential evidence and the preliminary tender of this was allowed at an interim order hearing on 28 September 2022. Orders under s 64 of the NCAT Act were made in respect of the confidential evidence and this was dealt with in substance at the hearing immediately following the open section of the hearing which Mr Whitfield and his Solicitor had participated in. In these reasons there will be a small number of paragraphs marked: 'Confidential Not for Publication' and these will deal with the nature of the confidential material, and what weight the Tribunal applies to that material bearing in mind that Mr Whitfield or his Solicitor cannot access and appropriately respond to that material.
3. The existence of confidential evidence and the application to have matters heard in camera were not of themselves confidential, only the contents of the confidential evidence.

Mr Whitfield's evidence at hearing

1. In evidence in chief Mr Whitfield adopted his statement (Exhibit A-1) and stated that it was true and correct.
2. When asked about his sister Chauntelle he told the Tribunal that he had not had contact for between five and 10 years in reference to [4] of his statement.
3. When asked about another person Ms 'A.-F.' Mr Whitfield said that she was his ex-partner and mother of his child. The child is currently four years old and Mr Whitfield has custody of the child. He told the Tribunal that the child's mother has supervised access to the child fortnightly whereby he supervises them together from a distance.
4. Mr Whitfield said that the refence to 'Michael' in [3] of his statement is a refence to the partner of his sister Chauntelle. Mr Whitfield said that Michael is now deceased.
5. In cross-examination Mr Whitfield was asked about various incidents recorded in COPS Events in the s 58 documents. He confirmed that certain persons highlighted by the Commissioner and referred to in that Event were his Nephew and Uncle. Mr Whitfield said that he had no recollection of that incident due in part to the passage of time. In respect of alleged assaults by Mr Whitfield on his Uncle he could not recall such maters.
6. Mr Whitfield confirmed that neither of his parents have had any contact with Chauntelle for the last three or so years.
7. In respect of matters listed at pg 44 of the s 58 documents from 2017 concerning alleged threats and a challenge to a fight directed at him, Mr Whitfield said that he did not recall such matters. He said that he had no knowledge of his father reporting that matter. He agreed with the proposition that it would be unusual for a person to be challenged to some sort of physical exchange or fight anonymously and for the recipient to respond accepting such a challenge in those circumstances.
8. Mr Whitfield was asked about a number of persons identified in COPS Events listed at pages 45 and 46 of the s 58 documents. 'M.B.' was confirmed as being an old friend. C.H.' was the girlfriend of 'M.B.' at that time. 'L A-F' was confirmed as Mr Whitfield's ex-partner as set out at [38] above.
9. Mr Whitfield did not recall the argument referred to in that material but admits that the exchanges and interchanges would have involved raised voices. Mr Whitfield denied that any knife was involved in that incident.
10. At page 49 58's was a reference to an Apprehended Violence Order (AVO) issued on 3 March 2019. This was issued for Mr Whitfield's protection. Mr Whitfield said that the context related to the care of his child and an argument ensued whereas a result Police applied for the order and he was placed under the protection. The AVO was varied in October 2019. The child lives with Mr Whitfield and these arrangements were made via a mediated outcome in the Federal Circuit Court / Family Law where he has parental responsibility for the child. His ex-partner's access is strictly controlled whereby he supervises her interaction with the child at parks, shopping centres and similar locations in the community.
11. Mr Whitfield confirmed that he did not live with his parents where the firearms had been stored prior to the condition being placed on the licence and subsequent revocation. Mr Whitfield confirmed that his estranged sister (Chauntelle's) children lived with their grandparents being Mr Whitfield's mother and father.
12. Mr Whitfield denied any knowledge or substance to the issue concerning his sister and her partner (now stated as deceased) arranging to have the parent's home raided. Mr Whitfield confirmed that his parent's address had been the firearm's safekeeping address.
13. When asked when he moved out of his parent's residence Mr Whitfield advised that it was in 2019.
14. Mr Whitfield stated that he had no contact with his ex-partner's new partner 'L.G'.
15. Mr Whitfield was asked about the Doctor's report filed as Exhibit 'A-2'. Mr Whitfield said that he had the report done because of the reviewers comments about self harm and the references to self harm. Mr Whitfield said that he was otherwise unaware of any references to him expressing views about self harm or self harm generally other than what material he had seen from the Commissioner in response to this application.
16. Mr Whitfield said that he did not talk about his sibling Chauntelle to the expert as he did not see that she was relevant to the matters raised in the reviewer's recommendations and had no current contact or contact for many years with her.
17. Mr Whitfield said that the 2015 charges for which the offence was proven without proceeding to a conviction, were for both text messages and phone calls. Mr Whitfield admitted that those exchanges were 'difficult' and did not deny the references to quotes such as: 'dead man' etc, but in his evidence before the Tribunal he said that he did not recall saying those things. His evidence was that he does not recall at all what was said.
18. In re-examination Mr Whitfield said that he would consent to any special condition placed on his licence. He said that the firearms had been arranged to be stored elsewhere prior to the revocation but that he had not completed the paperwork for the change of storage address.

Commissioner's evidence

1. The Commissioner relied upon the material outlined at [32]. Other than in the interlocutory application to tender confidential evidence, the Commissioner did not rely on any witness evidence.
2. The Commissioner relied on the s 58 material and the supplementary bundle and the Confidential Evidence received in the closed portion of the hearing.

Applicant's submissions

1. Mr Whitfield relied on written submissions and his lawyer made oral submissions at the conclusion of the hearing. In oral submissions it was submitted that many of the matters raised in the Commissioner's written submissions at their [4.12], occurred many years ago. The matter at [4.12] (a) was over 20 years ago and the matters at [4.12] (b) occurred 17 and 18 years ago. No formal Police intervention arose for these matters and these matters were amongst the Police holdings when the current (revoked) licence was applied for.
2. In submissions the issue of an Administrative Review of Mr Whitfield's father's licence was raised as apparently the circumstances of the revocation were similar because of the 'safe storage' location. The Tribunal in preparing these reasons has no knowledge of the basis and outcome of that matter only that it was to be heard in the weeks following this application.

Commissioner's Open Submissions

1. The Commissioner made oral submissions at the conclusion of the evidence and referred to their written submissions dated 17 November 2022.
2. The Commissioner confirmed that the matters outlined at [4:12] of their submissions, being the conduct of concern to the Commissioner, and were summarised as follows.
3. The allegations being that Mr Whitfield (a) when a minor in 2002 was reportedly seen travelling on a bus with a handgun down the front of his pants. (b) repeated interactions around 'known drug locations,' in 2004 and 2005 during school hours when he was a school student and should have been attending school, (c) being observed by Police 'on numerous occasions for suspicious behaviour', and (d) the April 2017 report by Mr Whitfield's father that Mr Whitfield had responded to an unprovoked challenge and as a result was the victim of an assault.
4. At [4.12] (e) there were concerns about domestic violence between Mr Whitfield and his ex-partner. He was the victim in March 2019 of a 'DV related' incident whereby his ex-partner was arrested and Mr Whitfield received the protection of an AVO.
5. At [4.12] (f) Police held concerns arising from another matter between the applicant and his ex-partner whereby they held significant concerns for Mr Whitfield's safety and the safety of his child. Police identified significant threats made over the phone to Mr Whitfield. His ex-partner was charged and his firearms were seized for 28 days (cooling off period) for safety.
6. At [4.12] (g) the Commissioner raised concerns about he location of the firearms (at the parent's home) and that even though Police records indicate that Chauntelle Whitfield's partner Mr Grinham is now deceased, the concern remains due to the children of Chauntelle living under the care of her parents at the home. In that regard the risk was considered ongoing notwithstanding Mr Grinham's death. The Commissioner submitted that the family dynamic was still 'volatile'.
7. The Commissioner referred in written submissions to the often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. Reference was also made to Masterson v Commissioner of Police New South Wales Police Force [2017] NSWCATAP 205 when considering the public interest at [130] noted that: ..virtually no risk was the relevant test.
8. The Commissioner also referred to other cases to illustrate how the objects of the Firearms Act should be applied to matters whereby domestic violence as an issue.

CONFIDENTAL PARAGRAPHS

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION].
3. [NOT FOR PUBLICATION].
4. [NOT FOR PUBLICATION].
5. [NOT FOR PUBLICATION].
6. [NOT FOR PUBLICATION].
7. [NOT FOR PUBLICATION].

Consideration

1. The decision under review is based upon the notion that Mr Whitfield having access to firearms would be contrary to the public interest. In respect of the public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
2. Section 3 of the Firearms Act 1996 provides: 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
3. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
4. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
5. I note that Mr Whitfield is not being adjudged as not being fit and proper to hold the licence, but that having licence would be contrary to the public interest.
6. Again I observe that where the main basis for the decision for review before the Tribunal is not the notion of 'fit and proper' it does hold some relevance to whether Mr Whitfield should be granted his application. Fit and proper is referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
7. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.
8. As previously observed the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
9. Having reviewed Mr Whitfield's evidence I accept the background and circumstances of his past associations and the issues with the mother of his child (his ex-partner) and at times her new partner.
10. Balanced with this is the evidence that Mr Whitfield is a caring and appropriately supportive parent who has been given full custody of his young child by the Court. Whilst these matters themselves are not of significant weight in determining that in a public safety regime Mr Whitfield should be grated resumed access to firearms, they do go some way to identifying and establishing evidence of a change in his nature and attitude from that displayed in his teenage and young adult years. These matters go to reducing potential risks.
11. When subject to lengthy cross examination I found nothing adverse about his evidence concerning his character and his desire to use firearms in a lawful manner and be fully compliant as he has always been with the legislation. In many ways as the concern relates almost solely to the prior associations and involvement with persons in his earlier years and the issue of his sister's threats or threats related to her by origin, Mr Whitfield's character itself is not significantly under question or examination. The issue in associations is that ones character might be tested by undue influence and ultimately coercion.
12. Where domestic concerns arise, the issue is understandably a concern about access to firearms in heated situations as well as resorting to violence and firearms escalating matters in the ultimate way. The concern is not so much Mr Whitfield resorting to inappropriate and unlawful firearms use but other persons in these contexts. However that does not establish that there is no risk that an authorised forearms users might report to improper action, the issue is to what extent is the risk evident.
13. Other than the single threat made orally, there is nothing adverse linking Mr Whitfield's behaviour to a firearm. The other equally and less serious matter are in my view significantly in the past.
14. I note that the delegate infers in their decision that should Mr Whitfield supply a satisfactory expert assessment then his access to firearms can be reconsidered.
15. I note that the author of Exhibit 'A-2' was not called or required for cross examination at hearing. The basis of this was not fully clear to the Tribunal but if the author was unavailable then the respondent would have sought an adjournment. No such adjournment was sought and the report was received without objection.
16. C.R Camacho Consultant Psychologist found that Mr Whitfield did not present (after testing) with any recognised disorder from the DSM V and as such does not have any diagnosable condition as listed in that manual.
17. The BDI and BDA assessments, being standard clinical assessment tools, were administered. The PAI was also administered. Mr Whitfield scored in the average range for males of his age.
18. The clinician found that Mr Whitfield does not have suicidal ideation or self harm traits. I note the finding that Mr Whitfield presents within the normal range for psychological functioning. The assessment followed the administering of a self -assessment tool and a clinical interview as well as the review of existing documents relating to Mr Whitfield.
19. The Commissioner submitted to the Tribunal that Mr Whitfield's own criminal conduct should be considered. I note that charges were dismissed and those that proceeded were dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999.
20. The Commissioner also submitted that Mr Whitfield's relationship with his former partner was a relevant consideration. Upon reviewing the evidence it appears that Mr Whitfield is doing his best to manage the necessary ongoing relationship with his former partner. There is no evidence that his lawful possession of firearms has caused any issues other than the link over five years ago to an oral threat not directed at the former partner herself.
21. In respect of Mr Whitfield's sister Chauntelle Whitfield, it would appear that any risk has diminished to some extent since the death of her partner. Mr Whitfiedl's evidence was that he has no contact with her and has not had contact for over five years and possibly 10 years.
22. In such a context if the licence is to be reinstated with a condition that they be stored at a location not known to or frequented by Chauntelle Whitfield, then any risk or concern in this regard is in my view significantly diminished.
23. I note that sometime after the beginning of the hearing the Commissioner seemed to accept the evidence that Mr Grinham is deceased even though Mr Whitfield was tested on this during cross examination. Reference to the Commissioner's submissions at 4.12 (g): In relation to the threats made to raid Mr Robert Whitfield's home where the Applicant's firearms were located, whilst Police records indicate that Mr Grinham is now deceased Police are aware that Mr Robert Whitfield and his wife still have custody over Ms Whitfield's children and that there is a current Apprehended Domestic Violence Order (ADVO) against Ms Chauntelle Whitfield on behalf of Mr Robert Whitfield.
24. In my view the imposition of a condition in the nature of that outlined at [94] above, would cure any concerns about risks to public safety because of the matters raised in the Commissioner's submissions at [4.12] (g).
25. I note that the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that 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 taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
26. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to reinstate the licence with conditions to ameliorate any risk.
27. The appropriate approach would be to reinstate the licence with conditions as set out at [94]. The condition could be phrased as: That Mr Whitfield's registered firearms be stored at a location not known to or not frequented by Chauntelle Whitfield.
28. As the revoked licence is still current, having regard to all of the evidence and submissions the correct and preferable decision is to reinstate the licence by setting aside the decision of the Commissioner, and directing that the licence be reinstated with a condition.
29. I note that the Commissioner was heard on the issuer of a possible re-instatement with conditions.

Conclusion

1. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.
2. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.
3. I therefore make the following orders:

Orders 1. The decision to revoke the Applicant's Category AB Firearms Licence is set aside. 2. In substitution of that decision the Commissioner is to reinstate the Applicant's Category AB firearms licence having regard to what conditions they believe is appropriate to the safe storage location for the registered firearms of the Applicant.

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: 22 December 2022