Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wade v Commissioner of Police [2021] NSWCATAD 245 Hearing dates: 6 August 2021 Date of orders: 18 August 2021 Decision date: 18 August 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof GD Walker, Senior Member Decision: (1) Decision under review set aside, (2) A category AB firearms licence is to be issued to the applicant. Catchwords: LICENSING – firearms licensing – licence revocation – prescribed offence – fit and proper person – public interest. -* Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1996 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Commissioner of Police v EMB [2021] NSWCATAP 63; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Director-General, Transport for NSW v AIC (DG) [2011] NSWADTAP 65; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; ERD v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 183 Grant v Commissioner of Police [2020] NSWCATAD 158; Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Kalinic v Commissioner of Police, New South Wales Police [2006] NSWADT 227; McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 1; Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110. Category: Principal judgment Parties: Jason J Wade (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: John Joseph Solicitors (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/00108247 Publication restriction: Nil REASONS FOR DECISION* 1. The applicant Mr Jason John Wade applied to this tribunal on 19 April 2021 for review of a decision taken by the respondent Commissioner on 22 March 2021 revoking his category AB firearms licence. 2. The applicant had held a minor's firearms permit under previous legislation and an adult licence for two years under that legislation. He had held a category AB firearms licence under the current legislation for over 21 years for the reason of recreational hunting/vermin control. Police inspected and approved his firearms safe keeping facilities at his Lithgow residence on 17 March 2004 and on 15 June 2010. 3. On 14 May 2009 at Lithgow Local Court he was required to enter into an 18-month good behaviour bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 for the offence of common assault. A later episode took place at the Commercial Hotel in Wallerawang on 4 October 2018, when his son was refused service of alcohol on the ground of inebriation but was served with packaged beverages in the bottle department. The applicant became enraged at what he saw as double standards and threw five bar stools over the bar, causing damage to the stools, a television set, a large quantity of glasses and the drink cradles. He had been at the hotel at a wake drinking for about five hours and informed police that he had consumed between 12 and 18 full-strength schooners. His actions were recorded on closed circuit television. 4. During an interview with police, he admitted throwing the bar stools and agreed that his actions would have caused persons to be fearful for their safety. On 5 October 2018 he was released from police custody on bail and served with a notice of suspension of his firearms licence, and his firearms were seized. 5. He was convicted of common assault and affray at Lithgow Local Court on 16 January 2020 and entered into an intensive correction order (aggregate) of 20 months, consisting of 6 months and 18 months for each offence respectively, corrective services supervision of 20 months commencing on 16 January 2020, concluding on 15 September 2021 and 200 hours of community service. He lodged an appeal on all grounds. 6. His conviction for affray was deemed to provide sufficient basis for revoking his firearms licence and it was also deemed not to be in the public interest for him to hold a licence. His licence was revoked on 21 February 2020. On 17 July 2020, Orange District Court varied the Local Court orders, substituting a fine of $1500 and compensation of $1545 for the offence of common assault, and a conditional release order (CRO) without conviction for 2 years, commencing on 17 July 2020 and concluding on 16 July 2022 for the offence of affray. His licence revocation was affirmed following an internal review on 22 March 2021. He then applied to this tribunal for review of that decision on 19 April 2021. Applicable legislation 1. The revocation of firearms licences is provided for relevantly by s 24(2) of the Firearms 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. 1. Clause 20 of the Firearms Regulation provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence. 2. Section 11(5)(d) of the Act provides that "the Commissioner must not issue a licence to a person who is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations". Clause 5(2)(a) of the Firearms Regulation 2017 provides for an offence referred to in scl (5)(1)(i) being offences relating to affray inter alia under s 93C of the Crimes Act. Clause 77(1)(c) of the Crimes (Sentencing Procedure) Act 1996 provides that a reference in another Act to a good behaviour bond is taken to include a reference to a community correction order or a conditional release order or both. 3. The issues in the present application are thus whether - 1. the applicant is a fit and proper person to hold a firearms licence within the meaning of s 24(2)(iii)(c), or 2. it would not be in the public interest for the applicant to continue to hold a firearms licence, or both. The evidence 1. The respondent called no oral evidence but relied on certain documentary material, including the s 58 documents (exhibit R1) and a closed-circuit television recording that was shown at the hearing. 2. The applicant also adduced no oral evidence but tendered a bundle of documents including some written submissions and witness statements, although no statement from the applicant himself. There was, however, a handwritten letter of apology apparently written shortly after the incident on 4 October 2018 and addressed to Ms Kay LaForest, one of the owners of the Commercial Hotel at Wallerawang. The letter offered Ms LaForest his "full and sincere apology" for any emotional stress and discomfort that he may have caused, knowing that his actions were totally unacceptable. "It has brought me great shame within my family and community", he wrote. 3. Also included in exhibit A1 was a witness statement dated 2 August 2021 by Ms Belinda Bresac, of Lithgow, stating that she is the fiancée of the applicant and had been in a relationship with him for approximately 11 years, living with him for the last 10 years. She wrote that in the entire time she had lived with him she had never seen him become violent, with the exception of the incident in 2018 at the Commercial Hotel at Wallerawang in 2018. He had never displayed the slightest hint of violence or aggression towards her. She had never felt unsafe or threatened by him. In her opinion he is not a violent man and does not have a tendency towards violence. 4. She had certainly never seen him use or threaten violence involving a firearm. He had possessed and operated firearms for the entire time that she has known him (excluding the suspension he had served since the 2018 incident) and she had always been impressed by his careful, diligent attitude towards firearm ownership and use. The applicant has always stored and used his firearms with the utmost care. Ms Bresac herself holds a category AB firearms licence and had been shooting with the applicant many times. He had always impressed her with his careful use of firearms when shooting and she had never seen him display anything even approaching a reckless or dangerous attitude towards firearms. 5. In the course of obtaining a licence she had undertaken safety instruction on firearms use and found that the applicant exercised a more stringent attitude towards firearms storage and use than that required as part of obtaining her firearms licence. She had also observed him instructing his sons in the use of firearms on obtaining their licences. Before his suspension, she would spend almost every weekend during the winter in recreational shooting with Jason and his sons. That was a most enjoyable family pastime for them and she is eager to resume doing so with the applicant. 6. Also included in exhibit A1 was a witness statement by Mr Paul Murray, of The Lagoon, dated 2 August 2021. Mr Murray stated that he holds a category AB firearms licence and has known the applicant for the last 12 years. In the time he has known the applicant, up to the time when his licence was suspended, he estimated that he and the applicant would go shooting some 4 to 5 times a month. They would go shooting on weekends, but also on weekdays, engaging in recreational shooting and vermin control. 7. In all his experience shooting with the applicant, he had always impressed him as a firearms user of the utmost caution and care. He had never once seen him do anything even remotely reckless with a firearm, on the contrary, he is what Mr Murray would call a "stickler" for safe firearms use and storage. Mr Murray himself is an experienced firearms user, having held a licence for approximately 9 years, and has no concerns about the applicant's firearms use. He considers him an exemplary user and would be pleased to see him regain the use of his firearms licence. Respondent's submissions 1. The respondent relied on certain written submissions filed on 23 July 2021 which, after setting out the background, the applicable law and the applicant's criminal history, pointed out that he had been found guilty of two acts of violence that were not in response to any threat or in any way justified. He was currently subject to a two-year conditional release order expiring on 16 July 2022 for the offence of affray. 2. Under s 11(5)(d)(iii) a licence must not be granted to a person who is subject to a conditional release order in relation to a prescribed offence. For the purposes of s 11(5)(d), cl 5(3) specifies that the offences referred to in scl 5(1)(c) and 5(1)(i) are prescribed, and the offence under s 5(1)(c)(ii) includes the offence of affray under s 93C of the Crimes Act, while the offence under scl 5(1)(i) specifies affray under s 93C. 3. Thus, if Mr Wade has applied for a licence while subject to a conditional release order for affray, the Act would require refusal of the application. In the circumstances of an application to review a revocation decision under cl 24(2)(a) of the Regulation [scil. s 24(2)(a) of the Act], the Commissioner's decision to revoke a licence for any reason for which the licensee would be required to be refused a licence is discretionary. There had been some discussion in this tribunal and its predecessor the Administrative Decisions Tribunal, some cases maintaining that it was anomalous to treat a conviction after a licence has been granted differently from a conviction before a licence application. On the other hand, there had also been cases preferring to approach the question on the basis of whether the decision was the correct and preferable one, rather than starting from the proposition that it was desirable to avoid an anomaly. It had also been held that the two approaches were not inconsistent and the tribunal must exercise its discretion in a manner that promotes the principles and objects of the Act, and the circumstances of each applicant were to be considered. It was noted that the applicant had not suggested that there existed any special or exceptional circumstances justifying setting aside the revocation. 4. On the issue of public interest, the respondent contended that the two instances of violence described in exhibit R1 were matters of real concern in considering whether there would be virtually no risk if the revocation were set aside. Both instances demonstrated how the applicant had dealt with circumstances, and rather than trying to resolve the matters by way of discussion he had resorted to violence. 5. The 2018 incident was particularly troubling, considering that Ms LaForest, who was tending bar, was aged 67 and the reason why the applicant confronted her was in response to her exercising her responsibilities in refusing to serve an intoxicated person. Further, his response in picking up the items that were immediately available to him to respond with violence, in this case the bar stools and throwing them and smashing glasses, was also of concern. The incident had only stopped when the applicant's partner and others intervened to remove him. 6. The objectives and principles of the act made it clear that public safety is the primary consideration in any matter and the public interest overrides any private interests the applicant might have with respect to possessing and using firearms. His record contained two instances of violent behaviour. The nature of the offences was such that the Act would require refusal of a licence, and while the present matter related to a revocation, the rationale behind the mandatory refusal remained, and that was that an applicant subject to a conditional release order for certain offences should not be issued with a licence. In the absence of any special or exceptional circumstances demonstrated by the applicant, the correct and preferable decision was to affirm the revocation. 7. At the hearing the respondent reiterated those points, saying that fitness and propriety, in light of the Act's objects and principles of promoting public safety, was crucial. The two assaults he had perpetrated were unprovoked and unjustified. S/C Taig in his statement recounted that when he and other officers attended the applicant's residence with a view to arresting him, they found the house in darkness and they were unable to raise anyone within the house. The applicant later told the officer that he was at home at the time but was not prepared to speak with police at that stage, which suggested he was trying to evade the police. Special or exceptional circumstances needed to be shown if the tribunal were to treat an offence by a licence holder differently from the same offence committed by a person who was applying for a licence. 8. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 the predecessor tribunal had said that the tribunal needed to be satisfied that issuing a licence to the applicant would present "virtually no risk" to public safety. The affray on 4 October 2018 occurred in circumstances where a staff member had refused to serve an intoxicated person, and was stopped only by the applicant's partner's intervention. There was no explanation from the applicant for his conduct. The references did not refer to his violent criminal past and he himself had said nothing about it. In this case public safety was a real concern. Applicant's submissions 1. The applicant relied on certain written submissions dated 26 July 2021 (part exhibit R1) which submitted that although not a record without blemish, the applicant's criminal history was not extensive. Further, there were no firearms offences disclosed in it. He has expressed remorse for both offences and in the case of the 2018 offences, demonstrated that remorse by immediately apologizing to the bartender involved and offering to pay compensation, before any police involvement. 2. The fact that neither offence involved the use of firearms in any way was of the utmost importance, and there was no evidence whatever suggesting that the applicant had ever acted in an unsafe or risky manner with respect to his firearms or his firearms licence, or which would suggest that his use of firearms represented a danger to the public. On the contrary, the only evidence before the tribunal established that he is a safe, diligent user of firearms and generally an upstanding member of the community. 3. The argument that it would be anomalous and unfair to allow the applicant to retain a licence when he would have to be refused a licence on the same grounds ignored the effect and intent of the legislation. The use of the word "may" in s 24(2)(a) meant that there would be some situations in which a person subject to a good behaviour order for a prescribed offence could nevertheless retain a licence. This was one of those situations. The tribunal in Grant v Commissioner of Police [2020] NSWCATAD 158, [28] dealt with that issue, pointing out that it was not necessarily anomalous to provide for different treatment in those circumstances. 4. The internal review had assigned "substantial weight" to the supposed "anomaly", which might have unduly influenced the decision. Further, the penalty imposed in respect of the prescribed offence of affray was towards the very lowest end of the scale of sentences available to the sentencing judge. Only a dismissal without conviction would have represented a lighter sentence. As it was, his Honour saw fit not to convict the applicant in respect of an offence that carries a maximum penalty of 10 years' imprisonment. 5. As regards public interest, there seemed to be no basis for a finding that the applicant's holding of a licence was not in the public interest. Further, public interest is not a ground on which the Commissioner would be required to refuse a licence. Section 11(7) provides only that the Commissioner may refuse to issue a licence to a person if doing so would be contrary to the public interest. 6. At the hearing Mr Joseph on behalf of the applicant reiterated those points, emphasizing that in Grant, Lucy SM had rejected the contention that special or exceptional circumstances were required before the discretion to revoke could be exercised in an applicant's favour. The test in the legislation is whether the decision under review is the correct and preferable one. Grant had also rejected the proposition that treating an offence by a person currently holding a licence differently from the same offence recorded against the person applying for a licence was in any way anomalous. 7. Nothing in the applicant's offences showed any misuse of firearms. He had passed police safe storage checks and his references stressed his diligence and care in the handling of firearms. Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 had explained that statutory discretions were to be exercised in light of the nature and purpose of the activity intended to be engaged in. Consequently, the applicant's safe use of firearms was crucial and his fitness and propriety should be judged in light of his use of firearms. 8. The applicant did not contend that he had been wrongly charged with affray. He had been found guilty, but on appeal had been dealt with without conviction and at the lowest end of the scale of severity. He had not attempted to evade the police, and had instead contacted the police and had taken part in a recorded interview. He had been cooperative and had voluntarily surrendered his firearms, not waiting to be contacted by police. 9. His references were relatively detailed and merited significant weight because they were the only evidence relating to his use of firearms. He is still a paid-up member of the Sporting Shooters Association and is serious and diligent about firearm ownership. He presents no danger to the public. Mr Joseph supplied the tribunal with a copy of the Firearms Registry Decision Making Guidelines (August 2019), drawing attention to pp 16 to 24 in particular. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a 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(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction. Fit and proper person 1. The first ground on which the respondent contends that the licence refusal should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Under s 11(3)(a) of the Act, a 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 24(2)(c) empowers the Commissioner (or on review this tribunal) to revoke a firearms licence if of the opinion that the licensee is "no longer a fit and proper person to hold a licence". 2. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies: 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 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…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion. 1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: 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, or 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. 1. 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]. 2. In Commissioner of Police v EMB [2021] NSWCATAP 63, [45] – [46], the Appeal Panel when discussing the concept of fitness and propriety in the firearms context stressed that s 11(3)(a) required a positive state of satisfaction that the applicant was a fit and proper person, and it was not enough for the decision-maker to find that he or she was not persuaded that he was not fit and proper. That would be inverting the test. In the absence of such a positive state of satisfaction, a licence could not be issued. 3. The respondent submitted that the applicant was not a fit and proper person to hold a firearms licence on two main grounds. The first was that he had been found guilty at Lithgow Local Court on 14 May 2009 of common assault, and had been placed on an 18-month s 10 bond. The police fact sheet records that on 25 April 2009, in front of the Commercial Hotel in Wallerawang, the applicant struck a person in the face, knocking him backwards to the ground. Two witnesses told police that the applicant was not threatened or provoked, although the applicant said he was threatened. 4. The applicant and one Kingsley ***** had approached a person who had known Kingsley for a number of years, and there had been tension between them for some time, as the victim believed that Kingsley was going to assault him at some point if given the opportunity to do so. An oral argument ensued between the two about whether or not they were going to go out the back and "Sort it out" with fisticuffs. Both were apparently abusive and threatening towards each other at the time. Seeming to take offence at the threats made against Kingsley and himself, the applicant had struck the victim with the back of his hand, knocking him to the ground. When questioned by police, the applicant said "I was standing out the front of the Hotel with Kingsley, and Kingsley was having an argument with this guy who threatened me so I gave him a back hander". 5. The second, and more recent, incident occurred on 4 October 2018, and was recorded in the CCTV footage that was played at the hearing. The applicant had been speaking to Ms LaForest, aged 67, who had been working as a bartender and had earlier refused his son drinks on the ground of intoxication. The footage shows the applicant becoming angry and throwing five bar stools over the bar, smashing glasses, a television set and other items, and striking Ms LaForest on the forearm, causing a bruise. As a result of that incident, the applicant is currently subject to a two-year CRO expiring on 16 July 2022 for the offence of affray. 6. On the day in question the applicant had arrived at the Commercial Hotel at about 1 p.m. and had been participating in a wake. He later said he had consumed between 12 and 18 full-strength schooners between 1 p.m. and 6 p.m. without food. The police fact sheet (exhibit R1, pp 19 ff) states that shortly before 6 p.m., Ms LaForest refused service to the applicant's son, causing him to speak to the bartender about the matter. During the conversation, the accused became enraged and picked up a bar stool, throwing it over the bar, and followed it with a further four bar stools. The stools were damaged, as well as a television set and a large number of glasses, and the drink cradles were damaged. The applicant's fiancée, Ms Bresac, stopped him and, assisted by a staff member, escorted him from the premises. 7. During his recorded interview with police, he made full and frank admissions of throwing the bar stools and agreed that his actions would have caused persons to fear for their safety. He said it had not been his intention to hurt anyone but he had become enraged because his son was refused service, went out the front of the hotel and in by another door to the bottle department, where he was served by the same bartender. 8. Under s 11(5)(d)(iii) of the Act, a licence must not be issued to a person who is subject to a CRO in relation to a prescribed offence. No conviction is required. For the purposes of s 11(5)(d), cl 5(3) provides that the offences referred to in scl 5(1)(c) and 5(1)(i) are prescribed. They include the offence of affray under s 93C of the Crimes Act. Thus if he had applied for a licence while subject to a CRO for affray (as he is until 16 July 2022), the Commissioner would have been required to refuse his application. But as he is seeking a review of the revocation decision, the decision by the Commissioner (or on review this tribunal) on the ground of any reason for which the licensee would be required to be refused a licence of the same kind is discretionary. 9. The respondent submits, relying on Kalinic v Commissioner of Police [2006] NSWADT 227, [23], and similar cases, that it would be anomalous for the tribunal to exercise a discretion so as to not revoke the applicant's firearms licence in circumstances where he is subject to the CRO until 2022 and has not demonstrated any special or exceptional circumstances that would lead to the setting aside of the revocation. 10. A number of recent cases have taken a different view, however. In Grant at [28], Lucy SM had this to say: I accept that, in certain respects, it may seem "anomalous" for a conviction or a finding of guilt to be treated differently before and after the grant of a licence. However, as Senior Member Walker said in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272 at [59], this situation "is not necessarily anomalous." The legislature has provided for differential treatment in these circumstances, by making revocation of a licence discretionary in circumstances where refusal of the licence would be mandatory. It may be that the rationale for this is that a person who holds a licence has a greater interest in retaining it, or that such a person may be able to demonstrate, for example, a history of safe use of firearms. Irrespective of what the rationale for the discretion is, it would be an error for the Tribunal to consider that it was obliged to exercise that discretion in a particular way. 1. The Grant approach found favour with Isenberg SM in ERD v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 183, [20]: The Respondent submitted that the approach in Grant was contrary to the statutory intention and earlier approach taken by the Tribunal, and presumably on the basis that to require "special or exceptional circumstances" is to apply a higher standard. The two approaches are, in my view, not inconsistent. It is clear that the Tribunal must exercise its discretion in determining a review in a manner that promotes the principles and objects of the Act, and that the circumstances of each Applicant are to be considered, especially in light of the "anomaly", to which I have referred. 1. In this instance the applicant's conduct at the Commercial Hotel on 4 October 2018 was indefensible and outrageous. In her witness statement to police on 5 October (exhibit R2, pp 7 – 13), Ms Kay LaForest set the scene: "He said, 'My son Ben was very upset about being asked to leave'. I said, 'I didn't ask him to leave. I refused him service. He was clearly drunk'…. It was quite a long conversation. There was a lot of repeat stuff. He kept telling me how upset Ben was". Asked how she felt when he began throwing stools over the bar, she replied "Absolutely threatened. Scared. I was trembling and very upset and crying. I felt so threatened. I was overwhelmed with emotions. I was just exposed. All I did was cut his son off. I am feeling overwhelmed now just thinking about it". 2. The witness suffered a bruise to the forearm and mentioned disturbance to her sleep patterns. Asked about that by the interviewing officer, she replied, "Would diabolical cover it. Just trouble sleeping. Just going over at all. Just playing in my mind…. I was just absorbed by the whole thing and I just couldn't go to sleep". Her husband, the licensee Mr Peter Hunt, in his statement dated 11 June 2019, explained that he had arrived on the scene a little later: "There was broken glass. Broken bottles and broken chairs behind the bar. Couple of TVs smashed and not working. And my wife was in tears. She won't walk down the side of the hotel at night since this happened. I have to go up and get her. He put the fear of God into her…. I believe there was four chairs smashed. Two TVs. Kay did the initial inventory check but I think there was approximately four bottles of spirits broken. There were two racks [of] glasses smashed because one of the chairs hit the glass rack at the rear of the bar". He estimated the damage at about $1400 to $1500. 3. Sgt Steven Giffney in his statement dated 18 January 2019 (exhibit R2, pp 1 – 4) described locating the applicant early on the morning after the incident and taking him to the police station. He asked the applicant if he wanted to watch the CCTV video, to which he said words to the effect of "Not really, I'm not proud of it". He agreed to take part in an electronically recorded interview (exhibit R2, p 27 – 40), in the course of which he said "I knew I wasn't directing the chairs at any people…. I don't normally do silly things when I drink". He appeared to be remorseful: "I've got no, I've got no excuse for doing the wrong thing but you know I have done it and I'm here", to which Sgt Gifffney replied, "Yeah. And we appreciate your cooperation". 4. The applicant explained, "It wasn't the refusal of service it was, like I said it was the double standards on cutting someone off and then selling them alcohol in the bottle shop" (op. cit. p 34). "I didn't set out to injure anybody…. And I didn't threaten anybody" (id., p 35). He again expressed remorse: "Well as I said to the publican this morning, I wasn't happy with what I'd done and I apologised if my actions emotionally affected his wife, his staff and his patrons". 5. The sentence imposed by the District Court on appeal was well towards the lower end of the scale of penalties for an offence carrying a maximum of 10 years' imprisonment: no conviction, and a 2-year CRO. In considering the exercise of the discretion to revoke where a licensee has committed a prescribed offence for which he would have to be denied the issue of a licence, it is not necessary for the tribunal to find special or exceptional circumstances before a revocation can be set aside: Grant, at [30] – [31]. As the tribunal explained in that case at [31], Bearing in mind these comments, I prefer to approach the question of whether the Commissioner's decision to revoke Mr Grant's licence is the correct and preferable decision, by having regard to the terms of s 24(2)(a) of the Firearms Act in its statutory context. That context includes the Act's principles and objects. As Deputy President Hennessy (as she then was) remarked, the "discretion should be exercised in a way which promotes the principles and objects of the Firearms Act" (Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 at [23]). 1. The applicant is a self-employed handyman (previously a coalminer) aged 46 who has lived with his fiancée for 10 years and has two grown children who no longer reside at home. He has been authorized for firearms for over 23 years, under the previous and current legislation without any contraventions of firearms legislation or adverse reports in that regard. His firearms history includes two safe storage inspections at the address where he still resides, and on both occasions police were satisfied that his arrangements met the standard of storage required by the legislation. 2. His criminal history consists solely of the common assault referred to above and the affray charge. Apparently when the matter was being heard on appeal in the District Court, the learned judge queried whether affray was the appropriate charge. But in any event Mr Wade pleaded guilty, and in merits review it is the nature of the conduct that is of the greatest relevance, rather than the fact of conviction (or acquittal) of a particular charge. 3. His conduct giving rise to the affray charge was indefensible, but his remorse over his actions was immediate and included a letter of apology to the hotel owners before any police action had been taken against him. Those events took place almost three years ago and the applicant has come under no adverse notice since then. His fiancée, with whom he has lived for the past 10 years, who is in the best position to know and would have much to lose if he had a tendency towards violence, writes that "In the entire time I have lived with the Applicant I have never seen him become violent, with the exception of the incident in 2018 at the Commercial Hotel at Wallerawang in 2018. He has never displayed the slightest hint of violence or aggression towards me. I have never felt unsafe or threatened by him. In my opinion he is not a violent man and does not have a tendency towards violence." 4. He has stable domestic arrangements and has been licensed for firearms for 23 years without any contravention of firearms legislation or any reports of careless or irresponsible handling of firearms. He has passed two police inspections of his safe storage arrangements. Most importantly, neither of the offences of violence that he committed involved any use of, or threatening behaviour with, firearms. 5. The applicant's referees are emphatic about his scrupulous care in the storage and use of firearms. His fiancée Ms Bresac, who herself holds a category AB licence and has often been shooting with the applicant, states that he has always stored and used his firearms with the utmost care and has impressed her with his careful use of firearms when shooting. "I have never seen him display anything even approaching a reckless or dangerous attitude towards firearms…. I found [after undertaking her safety course] that the applicant exercised a more stringent attitude towards firearms storage and use than that required as part of obtaining my firearms licence". She had also observed him instructing his sons in firearms use when they obtained their licences and considers him "an excellent and thorough instructor". Before his licence suspension, she would spend almost every winter weekend in recreational shooting with him and his sons. "This is a most enjoyable family pastime for us and I am eager to resume doing so with the Applicant". 6. Mr Paul Murray has held a licence for approximately 9 years and has known the applicant for the last 12 years. Until Mr Wade's licence was suspended, he went shooting with him some 4 to 5 times a month for recreational shooting and vermin control. He writes, "In all my experience shooting with the Applicant he has always impressed me as a firearms user of the utmost caution and care. I have never once seen him do anything even remotely reckless with a firearm: on the contrary he is what I would call a 'stickler' for safe firearms use and storage". 7. The evidence leads me to conclude that there is no significant risk of any recurrence of violent behaviour on the applicant's part, and especially no significant risk of carelessness or misconduct in the use of firearms. In my view it is not possible to say that "the licensee is no longer a fit and proper person to hold a licence" within the meaning of s 24(2)(c) and I so find. The public interest 1. The second ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20. 2. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They 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, New South Wales Police Force [2013] NSWADTAP 16. 3. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 4. The respondent relied on a passage in which Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] had said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130]. 5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]). 6. Other cases have pointed out that 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, [64] – [66] 66]. 7. Thus, 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 "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". 8. The respondent contended that the two instances of violence described above were matters of real concern, considering whether there would be virtually no risk if the revocation were set aside. Both instances demonstrated how the applicant had dealt with circumstances, and rather than trying to resolve matters by way of discussion he had resorted to violence. Particularly troubling aspects of the 2018 incident included the age of the bartender (67 years) the fact that it was in response to her exercising her responsibilities in refusing to serve an intoxicated person, his violent response and the fact that the incident only stopped when Ms Bresac and others intervened to remove him. 9. Those incidents of violence, especially the October 2018 episode, are indeed concerning for a variety of reasons. For the reasons given above in connexion with the fit and proper person criterion, however, I consider that the evidence favours the view that if his firearms licence were restored, the applicant would not present a "real and appreciable risk", as the tribunal put it in Webb, of danger to public safety. On the basis of all the evidence, the discretion should be exercised in the applicant's favour and the decision under review should be set aside. Order 1. Decision under review set aside. 2. A category AB firearms licence is to be issued to 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: 18 August 2021