Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kikiras v Commissioner of Police, NSW Police Force [2023] NSWCATAD 27 Hearing dates: 25 October 2021 Date of orders: 2 February 2023 Decision date: 02 February 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: K Mobbs, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Firearms licensing- refusal -fit and proper person -public interest Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380 Barlow v Commissioner of Police, New South Wales Police Service [2003] BSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9 Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 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 Joseph v NSW Commissioner of Police [2017] NSWCA 31 Kammoun v Commissioner of Police, NSW Police Force [2021 NSWCATAD 273 Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 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 McDonald v Director-General of Social Security (1984) 1 FCR 354 Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Shi v Migration Agents Registration Authority [2008] HCA 31 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 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 Texts Cited: Nil Category: Principal judgment Parties: Constandinos Kikiras (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Applicant (Self-represented) Makinson d'Apice Lawyers File Number(s): 2021/00216335 Publication restriction: Nil REASONS FOR DECISION 1. Mr Constandinos Kikiras (the Applicant) applied to this Tribunal on 29 July 2021 for review of a decision by the Commissioner of Police, NSW Police Force (the Respondent) on 19 May 2021 to refuse his application for a Category AB firearms licence on the basis of his traffic record. 2. During the course of the hearing, it was conceded by Mr Regener, the solicitor for the Respondent, that the Applicant had applied for an internal review of the Respondent's decision to refuse the Application. Accordingly, the Tribunal had jurisdiction in this matter as the Applicant was not notified of the outcome of the review within 21 days and the review was taken to have been finalised under s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act). Applicable legislation 1. The general principles and objects of the Firearms Act 1996 (the Act) are set out in s 3 as follows: (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 supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) … 1. Section 11 of the Act relevantly provides: 11 General restrictions on issue of licences ... (3) A licence must not be issued unless— (a) 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, and ... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 1. In this matter, the Respondent contends that the Applicant is not a fit and proper person to possess firearms without danger to public safety or to the peace, and that the issue of a firearms licence to him would be contrary to the public interest. Tribunal Proceedings 1. The matter was listed for a telephone hearing on 25 October 2021. On 22 October 2021, the Applicant advised by way of email correspondence to the Registry that he required further time to prepare for the hearing, noting that the Respondent's submissions had been filed ten days previously and given the nature and complexity of the points raised and that he was self-represented, he required further time to prepare and respond. By email of the same date, Mr Regener advised that the application for an adjournment was opposed as the Applicant had been self-represented when the orders for service of materials were made. The Respondent served its material in accordance with those orders by 12 October and there were no new facts or circumstances advanced by the Applicant to justify the adjournment. 2. The Applicant forwarded a further email to the Registry on 22 October 2021 noting that new material had been submitted by the Respondent, namely a statement by Senior Constable Rogers and two videos provided by that Officer, and that the Applicant required further time, noting that the Respondent was now represented by a third party. The Applicant also submitted that the Notice of Representation Form had not been signed by the Respondent and was invalid. Mr Regener responded that the "new materials" had been filed in accordance with the Orders of the Tribunal and that in any event, the Applicant was the subject of, and present during, what was recorded on the video and statement and should not require additional time to answer any factual matters in that material. Mr Regener noted that the Respondent had been formerly represented by solicitors from the New South Wales Police Force, Office of General Counsel and the fact that independent legal representation had been appointed was not a reason for an adjournment. Mr Regener submitted that the form referred to did not require consent for a "legal practitioner". 3. In further email correspondence on 22 October 2022, the Applicant referred to Senior Constable Rogers having been found guilty of an offence of accessing restricted data for an unlawful purpose in July 2021 and that he would contend that the "new materials" served by the Respondent were inadmissible as evidence and seek to subpoena the court records of the Officer's conviction as well as video evidence relating to the Applicant's seatbelt offence. He again sought an adjournment due to the evolving complexities of the case. Mr Regener submitted, that without conceding that there was a legitimate forensic purpose for the proposed inquiries, that the time for the Applicant to have commenced inquiries or prepared additional evidence was when the material was filed. He submitted that the Respondent would experience prejudice by the costs thrown away of preparation for the hearing and that the application for an adjournment should not be granted in circumstances where the Applicant's dilatory conduct was the reason for the adjournment application. 4. On 22 October 2021, Senior Member Ransome made an order that the adjournment request be dealt with at the beginning of the hearing on 25 October 2021. At the commencement of the hearing, the Applicant submitted that he still sought an adjournment on the basis of the conviction and improper conduct of Senior Constable Rogers. Mr Regener conceded that the Officer had been convicted of an offence and that the material was publicly available online. He submitted that the conviction was not relevant to this matter and did not affect the credit of the witness as the evidence of the Officer was supported by video. He submitted that any further investigation by the Applicant would not assist the Tribunal in considering the review of the Application as any evidence obtained by a further summons would not be relevant. 5. Having regard to the provisions of the Civil and Administrative Tribunal Act 2013 (CAT Act), and in particular the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings and given that time had been allocated for the hearing and the parties were present, as was Senior Constable Rogers, it was determined that the hearing of the matter commence and that it proceed as far as possible. The parties agreed to this course, and it was noted that due to some technical issues at the commencement of the hearing, it may not be possible to complete the hearing within the time allocated and a further hearing date may be required. The Respondent and Applicant reserved their rights in relation to any further evidence. The Evidence Respondent 1. The Respondent relied on the s 58 documents (exhibit R1), the Applicant's iCOPS CNI profile (exhibit R2) and the Applicant's RTA traffic record (exhibit R3). The Applicant initially objected to the Statement of Senior Constable Rogers and the two audio visual files from the body worn video camera worn by the Officer and referred to in his statement. At Mr Regener's suggestion, the Applicant went through each paragraph of the Officer's statement to identify those parts that he submitted caused him prejudice. The Respondent agreed not to press a portion of paragraph 6 of the statement and a line was struck through that part of the statement. 2. Following consideration of the Applicant's objections in relation to paragraphs 9, 13,14 and 20, the statement was admitted into evidence (exhibit R4) with the exception of that portion of paragraph 6 that was not pressed by the Respondent. The statement was admitted on the basis that the various issues raised by the Applicant could be put to Senior Constable Rogers in cross-examination. Similarly, the audio visual files were admitted into evidence (exhibit R5), with the exception of those words that were excluded from Senior Constable Roger's statement. 3. Prior to the Officer giving evidence, the Applicant was advised that he would have the opportunity to ask him questions and that if he wanted to put further material to him, that could be considered prior to the proceedings being concluded. The Applicant agreed to this course. Senior Constable Rogers then gave evidence and was cross-examined by the Applicant. 4. At the conclusion of Senior Constable Rogers' evidence, the Applicant was asked about his request for an adjournment based on his concerns relating to the Officer's conviction and whether, having heard Mr Regener's submissions that this would not assist the Tribunal in relation to the Applicant's firearms licence, was there was anything further that he wanted to put. The Applicant said no and that he was happy to proceed. He was then asked if he was happy for the matter to be finalised that day or to proceed as far as possible, and he replied "[a]bsolutely". Applicant 1. The Applicant relied on a character reference from Mr Steve Vassiliadis dated 12 August 2021. Whilst this character reference had been filed with the Tribunal, it had not been served on the Respondent. The Applicant provided Mr Regener with a copy of it during the course of the proceedings and Mr Regener indicated that for the sake of expediency he did not object to its tender but submitted that it did not appear to go to any issues in the matter and that it was a question of the weight to be given to it. The character reference of Mr Vassiliadis was admitted into evidence (exhibit A1). Mr Vassiliadis did not give evidence and was not required for cross-examination. 2. The Applicant did not file any other material in the proceedings. He advised the Tribunal that he did not need to file anything else and was happy to proceed in relation to what the Respondent had filed. In the course of the Applicant making oral submissions, Mr Regener submitted that the Applicant was straying into giving evidence in relation to a traffic accident on 25 December 2007 that was referred to in the iCOPS report (exhibit R2). Following some discussion, the Applicant was provided with the opportunity to make an application to give evidence. He did so, and Mr Regener submitted that in the absence of a statement from the Applicant it put him in a difficult position, as he would be hearing the evidence for the first time. He indicated that if it was short evidence, and limited to this incident, the evidence was not opposed. Mr Regener clarified that it was not submitted that a traffic infringement had been issued to the Applicant in relation to the 2007 incident but only that the Applicant had been involved in a traffic accident. The Applicant then gave evidence and was cross-examined. Respondent's submissions 1. Written submissions were filed on behalf of the Respondent on 12 October 2021 and oral submissions were made at the hearing by Mr Regener. It was submitted that the Respondent was correct to refuse the Applicant's application for a Category AB firearms licence on the basis that the Applicant was not, and is not, a fit and proper person and could not be trusted to have possession of firearms without danger to public safety or to the peace. It was submitted that the Applicant's extensive record of traffic infringements was a source of great concern, particularly because it spanned over many years and had not significantly subsided recently. This record suggested that the Applicant is not a fit and proper person to hold a firearms licence. 2. The Respondent conceded that the Applicant has no convictions for criminal offences. However, it was submitted that the tribunal has held that an applicant's history of repeated breaches of traffic laws and regulations is a relevant consideration in regard to firearms licensing issues. 3. The Respondent submitted that the Applicant's traffic record revealed an extensive list of traffic related infringements and an essentially appalling disregard for the traffic laws and regulations. In the Notice of Refusal that refused the Applicant's Category AB firearms licence (part exhibit R1), reference was made to 12 traffic infringements from 24 December to 25 June 2020 inclusive. At the hearing, the Respondent relied upon a large number of further traffic infringements. It was submitted that the "school zone" offences were particularly egregious in circumstances where the people put at risk were children. 4. In addition to these proven offences, reference was also made by the Respondent to two further matters: 1. On 25 June 2020, the Applicant was detected not wearing a seatbelt whilst driving; and 2. On 31 August 2021, it was alleged that the Applicant was guilty of driving his vehicle with an unsecured load and breaching a public health order in the middle of the COVID-19 pandemic. 1. It was submitted that these two further traffic matters were pending determination, but demonstrated an intemperate personality of the Applicant. The Respondent also referred to three incidents in which the police were called to attend on the Applicant as a consequence of arguments in a domestic context and it was submitted that if the Applicant had access to a firearm (or a firearm was available in such circumstances), there would be a risk that the firearm would be used. 2. The Respondent submitted that the Applicant's breach of traffic laws and regulations indicated a disregard for a regulatory scheme designed to ensure public safety and for the law generally. It demonstrated a propensity to disregard the traffic laws that are enacted to ensure public safety and the "school zones" offences and the alleged breach of the public health orders are particularly egregious examples of the Applicant wilfully disregarding public health and safety. It was submitted that the Tribunal could not be satisfied that the Applicant poses virtually no risk to public safety and should find that he is not a fit and proper person to hold a firearms licence. 3. It was also submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence for a number of reasons, the most notable issue, and the most significant factor behind the refusal of the Applicant's licence, being the Applicant's history of traffic infringements spanning over 15 years. The Applicant's history of traffic infringements directly relates to public safety and raise doubts regarding the Applicant's ability to abide by the rules and regulations necessary to possess a firearms licence. It was submitted that it would be contrary to the public interest for the Applicant to hold a firearms licence as he has a propensity to disobey traffic laws and regulations. 4. The Respondent submitted that the Tribunal could have regard to the additional matters, including the two traffic matters that had not been finalised as of the date of the hearing as it is the conduct rather than the conviction that is of concern to the tribunal. In oral submissions, Mr Regener submitted that the relevant Public Health Order that was in effect on 31 August 2021, the date on which the Applicant was observed by Senior Constable Rogers in Ballina, was the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (Public Health Order). It was submitted that the Applicant was in breach of the Public Health Order as the maximum number of persons who could participate in an outdoor public gathering at that time in a "stay at home area" was two and the Public Health Order required the wearing of a mask in particular settings. 5. It was submitted that not only had the Applicant not complied with the traffic regulations, but he had also shown a callous disregard of the provisions of the Public Health Order, that was a system to protect the health and safety of all people in New South Wales. 6. In relation to the seatbelt offence, the Applicant had put forward an alternative series of events and it was submitted that the evidence of Senior Constable Rogers should be preferred to that of the Applicant. It was submitted that the evidence established that the Applicant only follows the rules he believes in and that he has a long history of breaching the road rules. Applicant's submissions 1. The Applicant did not file any written submissions in the matter. He did however provide grounds as part of his Administrative review application form filed on 29 July 2021 (Grounds). In the Grounds he referred to the 12 infringement notices that were referred to in the Notice of Refusal dated 19 May 2021 (part exhibit R1) and said that of these, four were more than ten years old and no longer relevant, the most recent infringement was to be heard in court and is a fine only matter. The remaining infringements were mostly for "low range exceed speed limit" and cannot justify the refusal of his firearms licence. He stated that there have never been any serious driving offences such as reckless driving, drink driving or drug driving. The Applicant refuted the claim that he is not a fit and proper person and stated that he was an upstanding member of the community and of excellent character with no criminal record. 2. In his oral submissions, the Applicant reiterated the matters that he had raised in the Grounds. He told the Tribunal that he stood by his character and his driving record and that the offences listed were offences that anyone could have on their record. He said that all matters were infringements only, none were serious and did not give cause to refuse his firearms licence. He agreed with the Respondent's submissions that driving safety and gun safety were at the same level. He submitted that the State of NSW was happy to allow him to continue driving because the infringements were penalties only and nothing serious. He submitted that if he was suitable to hold a drivers licence, then he was suitable to hold a firearms licence. 3. The Applicant submitted that he would abide by all of the laws relating to firearms and undertook always to do so. He submitted that the infringements, especially the old ones occurred when he was a young man and less mature. He was now a different person, a family man who valued safety and would never do anything to put anyone at risk. He submitted that the Respondent had conceded that he had in fact applied for an internal review and that this proved that his submissions were true and accurate and proved that he had done the right thing according to the regulations and guidelines. Role of the Tribunal 1. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. 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 then before it, and any applicable written or unwritten law. The tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34]. In an application for review the 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. Consideration 1. As referred to above, the Respondent relied on the following grounds for the contention that the correct and preferable decision would be to affirm the decision of the Respondent to refuse the Applicant's application for a firearms licence: 1. That the Applicant is not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety; and 2. That the issue of a firearms licence to the Applicant would be contrary to the public interest. Fit and Proper Person 1. The meaning of the term "fit and proper person" has been considered by this tribunal and other courts and tribunals on many occasions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-157, Dixon CJ, McTiernan and Webb JJ said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability… 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 definite criteria and which in truth involves a very wide discretion. 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]. In the context of the Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] BSWADT 254, [22]. 2. 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. They went on to say at 388: The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 at 76 Walters J said in respect of the term "fit and proper": The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence…but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…as a person to be entrusted with the sort of work which the licence entails. Public Interest 1. The phrase "public interest" is not defined in the Act. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police, New South Wales Police Service v Toloeafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence, the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation. 1. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They 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, [33]. In the present context and given the objects of the Act as explicitly and emphatically stated in s 3(1), the primary consideration in relation to the public interest must be public safety. The Applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety. 2. In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test 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]. 3. 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]. 4. 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]. 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". Character reference 1. The Applicant relied on a character reference from Mr Vassiliadis dated 12 August 2021 (exhibit A1). The reference states that Mr Vassiliadis has known the Applicant as a friend for 40 years and a work colleague for two years, during which they carried out numerous renovation projects. He states that the Applicant is intelligent, capable, hardworking and dedicated, quick on his feet and is more than capable of handling any situation with thoughtfulness and security. He states that he has always found the Applicant to be efficient, detail oriented, extremely competent and organised, and never misses a deadline. He states that he highly recommends the Applicant for a gun licence which he seeks to pursue in the near future. 2. The reference does not touch on the Applicant's character nor the Applicant's traffic history. The reference does not indicate that the author was aware that the Applicant had previously applied for a firearms licence, and was seeking a review in this Tribunal of the refusal of that licence by the Respondent. Having regard to these factors, I give little weight to the reference. iCOPS CNI Profile 1. The Respondent sought to rely on three incidents referred to in the Applicant's iCOPS CNI profile (exhibit R2) of police being called to attend on the Applicant in relation to reports of verbal arguments in a domestic context. Two of the incidents occurred in 1996 and the third in 2002.The Respondent accepted that there was no violence involved and no such further incidents had occurred in the last 20 years. In the circumstances, I give no weight to these matters. Traffic Offences 1. The Respondent primarily relies upon the Applicant's traffic history to support the contention that the correct and preferable decision is to affirm the refusal of the Application. The Notice of Refusal (part exhibit R1) relied upon 12 infringement notices that had been issued to the Applicant, including an infringement issued on 25 June 2020 for "Not wear seat belt" (seat belt infringement). It was not contested that the Applicant had elected to have the seat belt infringement heard before the Local Court and that it had not been finalised as of the date of this hearing. 2. The documents relied upon by the Respondent include the Applicant's Traffic Record Report dated 6 August 2021 (part exhibit R1), the Applicant's iCOPS CNI Profile (exhibit R2) and the Applicant's RTA Traffic Record dated 29 September 2021 (exhibit R3) that contain further traffic matters than those referred to in the Notice of Refusal. The Respondent also relied on the seat belt infringement as well as infringement number 4067115288 issued to the Applicant on 31 August 2021 for driving a vehicle with an unsecured load. The Applicant stated that he did not receive the original infringement notice for the unsecured load matter. He said that he had only recently received a reminder notice and that he would be contesting the matter. Other than these two matters, the Applicant did not dispute any of the matters in his traffic history. Applicant's recent infringements 1. In relation to the two most recent infringements, the Respondent submitted that irrespective of whether a matter is or is not proven beyond reasonable doubt, the tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v NSW Commissioner of Police [2017] NSWCA 31, [62] –[64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70, [30]. 2. The Respondent also made reference to the observations of the Appeal Panel in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20] as follows: It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. 1. The Respondent also referred to the Court of Appeal in Joseph noting at [63] that "there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence." The Respondent submitted that the applicable standard is the civil standard. 2. Whilst I accept the Respondent's submission that the Tribunal could take the seatbelt infringement into account, I decline to do so given that not all of the relevant material relating to this incident, and in particular, the audio visual material, was in evidence before the Tribunal. 3. The Applicant told the Tribunal that he intended to challenge the infringement in relation to the unsecured load matter and that the reason for this was that whilst the load was not covered by a net, it was completely contained within the tray with the sides up. He said that he had received a flat tyre that morning and had no option but to put it into the back on the tray, short of leaving it on the side of the road. 4. As referred to above, Senior Constable Rogers gave evidence at the hearing and was cross examined. The audio visual material from the Officer's Body Worn Video Camera relating to E83949168 was before the Tribunal (part exhibit R5). The audio visual material shows the Applicant's utility vehicle being stopped by the Officer on 31 August 2021. A wheel, including the tyre, can clearly be seen in the rear tray of the Applicant's utility vehicle. 5. In his statement, the Officer said that he observed that there were no coverings, ropes, straps or any means of securing the wheel to the utility. In his conversation with the Applicant that is recorded both in the Body Worn Video and in the Officer's statement, the Officer said, "Do you understand that this is an unsecured load?" The Applicant replied, "Is it, why's that?" Senior Constable Rogers evidence is that he then took hold of the wheel and moved it around in the rear of the tray using one hand. This action can be seen in the audio visual material. He then asked the Applicant "What's holding that in place?" and the Applicant replied, "Its own weight". Later, the Officer asked the Applicant in relation to the wheel, if he had something "to tie that in now" and the Applicant said, "Yeah I do". The following conversation then took place: SC Rogers: "Good, you'll have to get that done" Applicant: "I'll put it inside" SC Rogers: "What?" Applicant: "I'll put it in inside, is that alright?" SC Rogers: "Why would you do that?" Applicant : "Because I can" SC Rogers: "Well clearly as long as it doesn't obstruct your driving" Applicant: "Thank you" 1. The Applicant can be seen in the distance on the audio visual material removing the wheel from the back of the tray and appearing to place it into the passenger side of his vehicle. When the Officer returns to the Applicant's vehicle, the wheel can no longer be seen in the tray. 2. Shortly after being pulled over by Senior Constable Rogers, the Applicant advised him that he is recording the incident. In the audio visual material from the body worn video camera, the Applicant can be seen holding up his mobile telephone with the camera facing in the direction of Senior Constable Rogers. The Applicant did not adduce any other audio visual material of this interaction at the hearing. 3. The Respondent submitted that in the course of the hearing, the Applicant referred to a grey covering over the wheel. This was denied by the Applicant. I find that the Applicant did not refer to a covering over the wheel and instead stated that there was no net over the wheel but that it was fully contained within the sides of the vehicle's tray. There was no dispute that the sides of the Applicant's tray were up at the time that he was stopped by the Officer. The issue to be determined is whether the wheel was secured or not . 4. Having regard to the audio visual material, I find that the wheel was lying in the rear of the vehicle that had been driven by the Applicant and was secured only by its own weight and not by any coverings, ropes or straps. Other than the wheel, the tray was empty with no evidence of any strapping or nets. I do not accept that the Applicant had no option other than to place the wheel in the tray of the vehicle earlier that morning, as after being stopped by the Officer, he placed the wheel inside his vehicle stating that he was doing it "because I can". Accordingly, I am satisfied to the relevant standard that on 31 August 2021, the Applicant was driving his vehicle with an unsecured wheel in the rear tray. Applicant's traffic history 1. The evidence establishes that the Applicant was issued with his Provisional Drivers Licence in 1988 and his unrestricted Licence on 16 February 1989. The Applicant recorded his first speeding offence on 4 August 1990 for exceeding the speed limit by more than 30 kilometres but not more than 45 kilometres whilst driving a motor vehicle. The Applicant was issued with a further three speeding infringements resulting in the cancellation of his licence on 6 October 1992 due to demerit points. 2. Following the issue of his unrestricted Drivers Licence on 9 February 1993, the Applicant was issued with infringements for disobeying traffic lights (camera detected) in 1995 and speeding (between 30 and 45 kilometres over the speed limit). In 1996, the Applicant was issued with two further infringements for speeding and his licence was again cancelled on 23 November 1996. He was issued with an unrestricted licence on 27 March 1997 and issued with a further speeding infringement in November 1997. 3. During the period 12 December 2005 to 23 March 2008, the Applicant received an infringement notice for using a hand-held mobile phone when driving and three infringements for speeding that resulted in the suspension of his licence from 23 July 2008 until 22 October 2008. Between 6 May 2009 and 22 December 2009, the Applicant received four infringements for speeding and his licence was suspended from 9 March 2010 until 8 June 2010. Prior to that suspension coming into effect, the Applicant received a further infringement for speeding on 18 February 2010. Between 4 November 2010 and 8 September 2014, the Applicant received seven infringements for speeding, four of which were camera detected in a school zone, a further infringement for using a hand-held mobile phone when driving and an infringement for disobeying a no stopping sign. 4. The Applicant's licence was again to be suspended from 9 January 2015 until 8 April 2015, but this suspension was not implemented as the Applicant agreed to a condition to be of good behaviour between 9 January 2015 to 8 January 2016 inclusive. The Applicant did not receive any infringements during that period. Between 12 July 2016 and 20 August 2019 however, the Applicant received a further six infringements for speeding. 5. In the period from 16 February 1989, when the Applicant was first issued with an unrestricted licence, up until 20 August 2019, he received some 33 traffic infringements. These infringements include 29 infringements for speeding, of which four were in a school zone, two infringements for using a hand-held mobile whilst driving, one infringement for disobeying traffic lights and one infringement for disobeying a no stopping zone. The Applicant's drivers licence was cancelled on two occasions, suspended on two occasions, and good behaviour conditions imposed on one occasion, During that period, the Applicant was issued with eight warning/courtesy letters and had infringements referred to the State Debt Recovery Office on a number of occasions. 6. In the Respondent's written submissions, Mr Regener referred to the Applicant's extensive list of traffic related infringements and an essentially appalling disregard for the traffic laws and regulations. It was submitted that these traffic infringements directly relate to public safety and raise doubts regarding the Applicant's ability to abide by the rules and regulations necessary to possess a firearms licence. 7. In contrast, the Applicant submitted that he stood by his character and his driving record and that the offences in his traffic history were offences that anyone could have on their record. He said that all matters were infringements only, none were serious and did not give cause to refuse his firearms licence. The Applicant submitted that the infringements, especially the old ones occurred when he was a young man and less mature. He was now a different person, a family man who valued safety and would never do anything to put anyone at risk. 8. The Applicant's traffic infringements span the period from 1990 until August 2019, with the Applicant having received six infringements for speeding in the period from July 2017 to August 2019 . As referred to above, I have found that on 31 August 2021, the Applicant was driving his utility vehicle with an unsecured wheel in the rear tray. The continuing traffic matters do not support the Applicant's contention that he is now a different person, who values safety and would never do anything to put anyone at risk. The Applicant showed no remorse in relation to his extensive traffic record nor any understanding of the risk to public safety arising out of his conduct, and in particular, his multiple speeding offences, and in particular those occurring in a school zone. 9. The Applicant said that he accepted that driving safety and gun safety should be put at the same level. The Respondent's submitted that the traffic laws and the firearms legislation are both directed towards ensuring public safety. In recognising this proposition, Senior Member Montgomery held in Kammoun v Commissioner of Police, NSW Police Force [2021 NSWCATAD 273 at [102] that "the Applicant's repeated breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety". 10. I accept that an applicant's disregard for the traffic laws and regulations may be relevant to the criteria for a firearms licence. In Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 Senior Member Schahill said at [57] and [81]: The Applicant's traffic infringement history 57. The Applicant was unable to recall the traffic offences. Some of the offences are repeated e.g. speeding, PCA and not wearing a seatbelt – the last, on three occasions. On one view this demonstrates that the receipt of infringements had made little impact on the Applicant. They did not cause him to change his behaviour. The repeated infringements also suggest a lack of concern for either the public's or his own safety. … 81. The Tribunal is satisfied, viewing the Applicant's conduct as a whole, that it is not in the public interest for the Applicant to hold a firearms licence. The Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety. The Tribunal considers it is relevant that the Applicant was in possession of what on balance appears to be a prohibited weapon. The Applicant professed ignorance of this and said he was not an expert on firearms. 1. The Tribunal must consider all relevant matters and give "proper, genuine and realistic" consideration to each of the relevant matters. As the Appeal Panel said in Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 at paragraphs [24] to [25]: 24. The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). 25. In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi [Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82] does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations. 1. The Applicant referred to family in Greece, where he said that gun laws were much looser than in Australia, and most people have guns. Some 40 years ago, his uncle had a gun hidden on top of a cupboard, which had been taken by his cousin to go hunting. Tragically, the gun went off whilst his cousin was holding it and one of his friends had been killed. The Applicant submitted that this event had affected his family significantly and that it had stayed in his mind. He submitted that no one knew more than him how important it was to be careful around guns. He submitted that the traffic infringements did not have much relevance given this experience. 2. Whilst I accept that such an experience would have had a significant effect on the Applicant and his family, it also serves to highlight the importance of the underlying principles of the Act which includes confirming firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety. 3. Having regard to the Applicant's conduct as demonstrated through his long and extensive traffic record and his evidence before me, I cannot be satisfied that there is virtually no risk to the community should the Applicant be granted a firearms licence. The Applicant's repeated and ongoing breach of traffic laws and regulations indicates a disregard for a regulatory scheme aimed at ensuring public safety and he has demonstrated very little insight into his conduct. Accordingly, I consider that the issue of a firearms licence to the Applicant would be contrary to the public interest. 4. The Respondent submitted that even though no infringements were issued, the Tribunal should also have regard to the Applicant's conduct on 31 August 2021 in allegedly breaching the provisions of the Public Health Order then in force. In the recent decision of Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17, Senior Member Gatland found at [75] that "the Public Health Orders were concerned with ensuring public safety and thus have a similar regulatory intent as the firearms legislation and regulations". 5. Given however, that I have already found that the issue of a licence to the Applicant would be contrary to the public interest, it is not necessary for me to consider this additional conduct or to determine whether or not the Applicant is a fit and proper person to hold a firearms licence. Orders 1. The decision under review is affirmed. 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: 02 February 2023