Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Diamond v Commissioner of Police, NSW Police Force [2024] NSWCATAD 1 Hearing dates: 15 December 2023 Date of orders: 05 January 2024 Decision date: 05 January 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Griffin, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Firearms – Public Interest Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77 EMB v Commissioner of Police [2020] NSWCATAD 255 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357 Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 Texts Cited: Nil Category: Principal judgment Parties: Michael Diamond (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Hartmann & Associates (Applicant) Sparke Helmore (Respondent) File Number(s): 2023/00316806 Publication restriction: None REASONS FOR DECISION Introduction 1. The applicant seeks administrative review of the internal review decision of the respondent dated 29 September 2023 which refused his application for a Category A Firearms Licence. Background 1. The applicant has, since the age of 15, been a very successful competition sporting shooter. He won gold medals in the sport at two separate Olympic Games. He needs a firearm licence "before 16 January 2024 in order to compete at the Australian National Titles, the first selection competition for the [Paris] Olympic Games". 2. The applicant was first issued a Minor's Firearms Permit in 1989 at age 17. Over the ensuing 35 years, several licences were issued, suspended, cancelled, revoked, or refused. On 21 January 2023, a differently constituted tribunal, affirmed the respondent's decision to refuse the applicant a firearms licence. The tribunal found that it was contrary to the public interest that the applicant hold a firearm licence. The tribunal said, "In my view, it is appropriate that the applicant have some time without a firearms licence in which he focuses his mind on the underlying principles and objects of the Act and the need for strict compliance with his obligations as a firearms licensee. Additionally, until such time as the applicant has taken steps to deal with his ability to behave more appropriately when confronted with a frustrating circumstance, he should not be allowed to hold a firearms licence." 3. Following that decision, on 11 July 2023 the applicant made another application for a Category A licence. The application was refused, and the refusal affirmed upon internal review on 29 September 2023. It is that refusal which is the subject of this review. Evidence 1. The applicant tendered the following documents: a letter from Russell Mark Shooting Pty Ltd; a letter from Firearm Safety and Training Council Limited, attaching a certificate of training; a letter from Michael Kruger-Davis Psychologist; a Road Sense Australia Ltd Traffic Offender Intervention Program Court Report and a letter from Graham Gosling, a Court Chaplain and written submissions. 2. At the Tribunal hearing the applicant and his friend Mr Theodosiou gave sworn evidence and were cross examined. 3. The respondent tendered documents pursuant section 58 of the Administrative Decisions Review Act 1997, police records summonsed from Queensland and South Australia and written submissions. Applicant's submissions 1. It is submitted the applicant "has history but today he can be trusted, we say look at what he has done to improve". Specifically, the applicant relies on the opinions and records provided by Mr Mark, Mr Kruger-Davis and Mr Gosling. 2. Mr Russell Mark OAM is a fellow Olympian and has known the applicant for over 35 years. He states, "I could not speak more highly of Michael as a competitor... he has only ever conducted himself with utmost respect and dignity. I cannot name any instance where he has compromised his reputation by his actions. I never witnessed him ever consumed by alcohol or act in an aggressive nature… Michael has only ever handled and used his firearms totally within the confines of the relevant firearms regulations". 3. The Firearm Safety and Training Council Limited letter states, "the Firearms Safety and Training Council Limited is a registered training organisation that is approved by the NSW firearms registry for the delivery of the Firearms Pre- licence Qualification course: a mandatory course for all NSW firearms licence holders. The attached certificate certifies that you have successfully completed a course in firearms legislation relating to NSW... The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence." 4. The letter from Michael Kruger-Davis psychologist, states "I have been acquainted with Mr. Diamond since 1998... On 1 July 2021 I assessed Mr. Diamond and provided a report as part of a Family Court matter. On 24 January 2023 I received an email from Glenn Kable requesting if I could organise some sessions with Mr. Diamond to address the concerns of the tribunal. The outcome of the NSW Civil and Administrative tribunal hearing 2022/00045826 was attached to the email. Mr Kable drew my attention to paragraph 66 [quoted above at paragraph 3] to assist with the intervention plan. I reviewed the tribunal outcome and formulated the following plan. The counselling intervention needed to address: * Anger and strategies to deal with anger. * Goal setting. * Understanding alcohol and the effects of alcohol consumption. * Conflict resolution. * Understanding the requirements responsible firearm ownership/handling and security". 1. Mr Kruger-Davis concludes "throughout the sessions, face to face, video and telephone, Mr. Diamond was diligent in completing all tasks and instructions. He was capable of explaining the concepts and ideas well, indicating he was comprehending the learning material". The "sessions" consisted of the following: a telephone conversation outlining the plan and making an appointment to meet in person, a face to face session outlining the plan, goal setting instruction and exercise. Asking Mr Diamond to review an article on anger. Discussing with Mr. Diamond the strategies listed in that article on anger. A face to face session discussing anger and discussing completing the responsible service of alcohol course. A face to face session was organised but had to be abandoned due to Covid. Another face to face session completing the online learning component of the Responsible Sale of Alcohol (RSA) course. A video conference with Mr. Diamond discussing the conflict resolution component of the RSA online course. Using the NSW firearms registry fact sheet on the safe storage for firearms and ammunition, Mr Kruger-Davis asked Mr Diamond to read the fact sheet. At another session he asked Mr. Diamond to answer questions based on the safe storage of firearms and ammunition and transportation of same. At another session he revised with Mr. Diamond the essential elements of conflict resolution. Mr. Diamond began working on producing 3 video demonstrations of dealing with disgruntled customers and customer complaints as part of the responsible service of alcohol course. Mr. Diamond emailed copies of the videos for Mr Kruger-Davis to review. Finally, Mr. Diamond contacted Mr Kruger-Davis to tell him of his successful completion of the responsible service of alcohol online course. 2. Mr Kruger-Davis states "the outcomes achieved by Mr. Diamond during this intervention programme were: successful completion of the responsible service of alcohol course, certificate of successful attainment of responsible service of alcohol, goal setting instruction and exercises, understanding anger instruction and management strategies for dealing with anger, conflict resolution training and strategies for dealing with conflict, understanding of the safe storage and transportation of firearms and ammunition." 3. The Road Sense Australia Ltd Traffic Offender Intervention Program Court Report, issued on 10 November 2023, lists a number of competencies described under headings of "The Fatal 5" and "Road Realities" and states the applicant completed the program. It includes the following "Participant Comments - understanding that every kilometre over the speed limit kills. Understanding the importance of seatbelts and restraints saves lives. Understanding that Plan B is the best option when going out with friend for drinks. Importance of obeying street signs also saves lives. How dangerous driving can impact not only family but friends and the community." 4. Mr Gosling describes his work as a Chaplain for the Newcastle Court, that he was approached on 18 July 2023 to be the applicant's mentor and that he has known the applicant for over 20 years. He states, "on 1 November Michael acknowledged to me for the first time that drinking was the primary reason for him making wrong decisions and to date hasn't had alcohol for five months. Recent speeding in March 2023 and not completing a driver education programme in February 2022 has led Michael to re-enrol in a driver education programme which he completed on 11 November 2023. Michael needs to be consistently vigilant of varying speed zones and now sets cruise control for each. Michael has set a list of life priorities that include health, family, sport, good living, mental health and planning the future and now we will set about determining what these goals entail and how we will achieve these objectives. In the four months I have been Michael's mentor I have noticed a maturing in his responsibilities toward road rules, firearms ownership and his role and responsibilities in future personal relationships. Michael has realised that flawed decisions lead to flawed outcomes. I believe Michael is so desirable to have his firearms licence back he is willing to do whatever it takes to achieve that end." 5. Mr Theodosiou gave evidence about a valuable shotgun the applicant used in his Olympic and other competitions. It appears Mr Theodosiou holds the weapon on some sort of constructive trust for the applicant, stating that he would return it to the applicant if he ever asked for it. 6. Mr Diamond was questioned about the various police and court records naming him. He said he was embarrassed by his traffic record. He said he was the victim in most of the police records relating to domestic violence and assault and that he initially pleaded guilty on legal advice. The conviction was quashed on appeal. He said a lack of understanding was the reason he incorrectly answered 'No' to some questions on his last application for a licence. He said he obtained legal advice about those questions. When specifically asked about his 'No' response to the question concerning previous convictions he said, I should have said 'Yes'. He was asked why he responded 'No'. He said, "I'm not sure, I didn't understand the question correctly". 7. The applicant was shown his evidence at the previous tribunal hearing on 1 November 2022 (s58 p517) concerning an incident on 21 May 2016. That evidence related to the amount of wine he had consumed and when he had taken his weapons out of safe storage. His evidence before me contradicted the relevant evidence about these issues given under oath 13 months previously. When asked about this, the applicant said "I better recollect today and have a clearer state of mind. I haven't drunk alcohol in a long time and everything is a lot clearer". It was put to the applicant that he had failed to comply with the Firearms Act on several occasions. He replied, "poor choices". The applicant concluded his evidence by saying he "would be a better person than before". 8. It is submitted 'No' was the correct answer to the Conviction and Conditional Release Order questions on the licence application because both convictions were overturned on appeal and that the police held the information anyway. It is submitted the applicant has lost in excess of $1,000,000 in sponsorship and related income because he does not hold a firearms licence. It is submitted the tribunal could consider Romanos v Commissioner of Police, NSW Police Force [2019] NSWCATAD 272 at 54, and "stretch" the reasoning for that decision, which concerned the public interest in farmers and graziers having firearms licences, to include the applicant because of his financial circumstances. It is also submitted, following Romanos, that the applicant acknowledges his past and that applicants need not have lived exemplary lives. 9. It is submitted, citing Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at 63, the applicant initially pleaded guilty incorrectly and that substantial weight should not be placed upon that. 10. It is submitted the police records contain factual errors, such as a reference to a Tasmanian driver's licence never held by the applicant and they should not be relied upon. It is submitted the tribunal should consider the decision in EMB v Commissioner of Police [2020] NSWCATAD 255 (although counsel cited it as Harris) which concerned an applicant with a poor traffic history and who had been charged with several serious offences but was nevertheless found to be suitable to hold a firearms licence. Similarly, the applicant referred to the decision in Webb -v- Commissioner of Police, New South Wales Police [2004] NSWADT 110, in which an applicant with an offence history including improper storage and handling of weapons, was found to have demonstrated remorse and a "strengthened…appreciation of the importance of strict observance of his obligations as a firearms licensee" and was granted a licence. Respondent's submissions 1. The respondent submits the police records are the Commissioner's business records, that they are detailed and contemporaneous, they are not always perfect but they are important records which are routinely used by tribunals and have weight. 2. The respondent points to the statement by the applicant that he acknowledges his past but then claims that he was the victim in most of the reported events. The respondent submits this implies the 13 people mentioned in the police reports, as having made complaints and allegations against the applicant, have all lied to the police. The respondent submits the recording of a Tasmanian driver's licence rather than a South Australian drivers licence is a typographical error but does not derogate from the fact the applicant held a different State drivers licence at the relevant time. The respondent submits these equivocations, including the claimed "technical breaches" of the road traffic rules, demonstrate the applicant is not truly remorseful. 3. The respondent submits the programmes and mentoring undertaken by the applicant with Mr Kruger-Davis and Mr Gosling do not amount to significant steps in demonstrating reformed behaviour. The respondent submits there is no evaluative analysis in the psychologist's report. The respondent submits the applicant has known Mr Gosling for over 20 years and many of the matters reported to police occurred during the time he has received advice and guidance from Mr Gosling. The respondent submits it is too early in his recovery to rely on these reports. The respondent submits the fact the applicant was drunk and his vehicle contained his shotgun and some 150 rounds of ammunition is a very serious matter which must weigh against the granting of a licence to the applicant. Legislative framework 1. The general principles and objects of the Firearms Act 1996 are set out in s 3 which provides, relevantly: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms 1. Section 11 of the Act relevantly provides: (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (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. Consideration and findings 1. Under s 63 of the Administrative Decisions Tribunal 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 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 at 357). As the use of the word "may" in s 11(1) of the Firearms Act makes clear, the Commissioner has a discretion to issue a licence. The Act provides no explicit guidance on how that discretion should be exercised. 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 firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety". Consistently with that approach, the Act confers on the respondent the ability to refuse a firearm licence in circumstances where it is considered that the holding of a licence is not in the public interest. The public interest: section 11(7) 1. The expression "public interest" is not defined in s 11(7) or elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. 2. The applicant requires a firearm to participate in competition shooting and possibly qualify to compete in the forthcoming Paris Olympics. There is also a very significant financial benefit that would accrue to him from having a firearms licence and participating in competition shooting at an international level. Private interests, however, are not the only matters to be taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an 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 at [33]. The concept includes 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] 1 VR 63. Accordingly, the applicant's genuine reason for holding a firearms licence, cannot not be given priority over the public interest. 3. Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) at [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Although Ward was a case on the "fit and proper person" test, the principle in Ward has been held to apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [77]. 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, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66]. 4. The principle in Ward is to the effect that the licensing regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7]. 5. In Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110 at [32], Montgomery JM, when considering the question of public safety, stated that, only real and appreciable risk needs to be taken into account and that minimal, fanciful or theoretical risk can be excluded from consideration. 6. In this matter, the degree of risk can be gleaned from the police records. The applicant disputes the accuracy of those records. Moreover, he claims to have been the victim in most of those matters and that the traffic offences were largely "technical breaches". 7. The traffic record, at annexure 3 of the s58 bundle, includes the following infringements: 1. Driving whilst disqualified, 2. Driving with high range concentration of alcohol, 3. Speeding, 4. using a mobile phone when not permitted, 5. driving contrary to a stop sign or stop line, 6. driving whilst not wearing a seat belt. 1. I do not accept any of the traffic offences are "technical" breaches. They have occurred over a period of 25 years, most recently in March 2023, and demonstrate a longstanding disregard for a regulatory regime designed to protect the public. 2. The various police reports are spread over a period of 25 years, across three State jurisdictions, from 1997 to 2023. The most recent being from January 2022 in Queensland and involving domestic violence. A common thread is the applicant being present at or involved in incidents of aggression and violence. The applicant claims to be the victim in most of these incidents. 3. I had the benefit of observing the applicant give evidence and be cross examined. I am not satisfied that he was being wholly truthful in his evidence. He claims variously to have been a victim but also to be embarrassed by and ashamed of his history. He claims to be remorseful, but he attempts to minimise the conduct by referring to "technical breaches". He directly contradicted the sworn evidence he gave to another tribunal some 13 months ago on a significant issue. He explained this on the basis "I better recollect today and have a "clearer state of mind". I do not accept that explanation. The issue was about the removal of his weapon from safe storage on the Thursday before it was found in his car when he was drunk on a Saturday. The change in his evidence was that he removed the weapon and 150 rounds of ammunition on the Saturday morning before his shoot that day and not on the Thursday as previously testified. He denied the change was made to reduce the seriousness of the period of lack of safe storage. The change of relatively recent evidence given under oath is a very serious issue. I observed the applicant give this evidence and his explanation for the change. I am satisfied it was done deliberately to advance the applicant's claims and not as the result of having a "clearer state of mind". I am reinforced in this conclusion by the fact the significant change was not mentioned in the applicant's two earlier written submissions. I find the applicant's various claims denying fault, minimising his conduct, or blaming others to be implausible. I am satisfied the applicant has consistently demonstrated, over many years, impetuous behaviour, and a propensity to act with aggression. 4. The main thrust of this application for review by the applicant, is for this tribunal to focus on what Mr. Diamond has achieved since that judgement [the previous tribunal decision in January 2023] and focus on Mr. Diamond as who he is now… a greater focus should be on what he has done to address his past and to ensure compliance in the future". I have considered the written and oral evidence of what Mr. Diamond has done to address his past. It is to his credit that he has undertaken these activities. However, I am not satisfied that they demonstrate significant steps on a path to improved behaviour. In my view the completion of the RSA course whilst worthwhile, is of minimal value when weighed against the applicant's history. Mr Gosling and Mr Kruger-Davis provide little in the way of evaluative assessment of the applicant's likely future behaviour. The other training courses are important but do not carry significant weight due to their brevity and relatively superficial nature. Even if I were to accept genuine remorse and commitment to reformed behaviour, the tribunal cannot ignore the applicant's history. The weight of that history is such that it cannot be overcome by a recent period of mentoring, counselling and training. 5. In all the circumstances, I am satisfied the risk of granting a firearms licence to the applicant is real and appreciable. I find it would not be in the public interest to grant a firearms licence to the applicant. 6. For these reasons, I find that section 11(7) of the Firearms Act operates to exclude the applicant from being granted or holding a firearms licence. Decision 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 New South Wales Civil and Administrative Tribunal. Registrar 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: 05 January 2024