The Applicant, his ex-wife and daughter had brought to the attention of Police allegations of domestic violence over a number of years as victims of conduct by the Applicant's son, commencing in 2003. The Applicant's son's domestic violence history with respect to his family was set out in the s 58 documents.
In April 2004, an AVO was issued by Manly Local Court against the Applicant's son naming the Applicant, his wife and daughter as victims. The AVO was in force until April 2010.
In 2006, the Applicant reported to Police that his son was intoxicated, and had refused to leave. The son was at the time subject to bail conditions and an AVO that required that he not approach his mother or sister within 12 hours of consuming alcohol.
In 2009, the Applicant's son, who appeared to be very affected by alcohol, allegedly became very aggressive towards his parents, who both retreated to the upstairs part of the house. Their son followed them and continued yelling abuse about money issues. He reportedly tried to grab the Applicant, resulting in a physical altercation. When the Applicant told his son he would contact Police his son reportedly responded by stating he was going to use a "sharp blade" on the Applicant. The Applicant contacted Police to report that his son was threatening to kill him and his wife, and had tried to hit him. He also reported fears for his, his wife and his daughter's safety based on the son's irrational behaviour. Police subsequently applied for an AVO on behalf of the Applicant, his wife and daughter. The son, at the time, had been taking medication for anxiety and depression for about 5 years and had attended a rehabilitation clinic for alcohol abuse in 2005. An AVO was granted at Manly Local Court which was in force until 2013.
In August 2012, the Applicant's son, again while affected by alcohol, made threats towards the Applicant and damaged a wall. The son attempted to disconnect the power to the house to prevent the Applicant from using the phone. He yelled threats at his father and the Applicant was extremely fearful for his safety, particularly as the house was then in darkness. Police arrested the son; he was charged with contravening a condition of AVO and malicious damage to property. On 29 October 2012, an AVO was issued by Hornsby Local Court for a period of 9 months with the Applicant and his daughter named as victims.
In March 2013, the Applicant contacted Police to report an assault by his son. It was alleged that he had been asleep in his bedroom, having locked his door due to previous incidents of violence by his son. The Applicant awoke to the sound of his door smashing and his alarm system sounding and his son at the foot of his bed. The Applicant was very frightened that he was going to be attacked. Police arrested the son, who was charged with malicious damage and a provisional AVO was granted. The Applicant reported fears that if his son did not stop drinking his behaviour would become worse, and that his son had threatened to kill him by either poisoning or stabbing him. An AVO, which was to remain in force until May 2017, was issued at Manly Local Court for the protection of the Applicant.
In January 2014, the Applicant contacted Police to report that his son was very aggressive and had attacked him, telling attending Police that his son was very aggressive whilst intoxicated. The son refused to open his bedroom door to Police and blocked entry; he struggled with Police and had to be subdued with capsicum spray. He continued to resist arrest and had to be put in a caged truck before being conveyed to Dee Why Police Station. An AVO was issued by Manly Local Court for a period of 12 months, with the Applicant named as the victim.
In October 2014, the Applicant's son, while affected by alcohol argued loudly and aggressively with the Applicant's wife and daughter. He could be heard smashing a phone and Police were contacted. The son locked himself in his room, and needed to be handcuffed to be subdued. He was charged with breach of an AVO and resist/hinder arrest.
In May 2019, the Applicant's son reportedly attempted to enter the Applicant's bedroom which had a keypad and locks which the Applicant had installed because he was fearful of his son. The Applicant reported to Police that his son was taunting him through the door, threatening physical violence. The son allegedly dismantled other surveillance equipment the Applicant had installed for his safety. The Applicant reported to Police that his son, who was heavily inebriated, was trying to break in and that his son was known to carry a fake pistol. Police spoke with the son, who said he had signed letters from his mother permitting him to remove the cameras for privacy reasons. When asked by Police, the Applicant's wife denied writing the letters but told Police that her son would, on multiple occasions, enter her bedroom in the early hours of the morning, waking her and demanding she sign letters, and that that he would become aggressive when she refused to sign, so she had done so, without reading them. She also reported being fearful of her son due to his constant drinking and levels of aggression. Police spoke with the Applicant's daughter who stated that her brother was abusive, and that she was fearful of him when he was intoxicated. She also stated that her brother was an alcoholic and his behaviour was a common occurrence. Both she and her mother informed Police about multiple weapons in the Applicant's son's bedroom ranging from replica firearms to large knives. Police located a replica handgun on the son's bed, and a further three (possibly genuine) handguns in the room, and three large-bladed knives. The son was charged and an AVO was issued naming the Applicant, his wife and daughter as victims. The AVO remained in force until July 2021.
On 31 March 2022, the Applicant woke to his son knocking on his door. The Applicant reported to Police that he could tell his son was intoxicated by the way he was slurring his words and looking into the door camera. The son continued to knock on the Applicant's door and continually asking for money. When his father refused, the son reportedly became aggressive and tried to engage the Applicant in an argument. The Applicant's son contacted Police and said that his father was "planning to buy firearms", and that the Applicant had a firearms licence, and was worried about his father's mental health, and his mother's safety. The Applicant, in his evidence, denied that he had ever had any mental health issues, and said his son believed that he was a "genius" while all the other members of the family - the Applicant, his wife and their daughter - all had mental health issues.
The Applicant contacted Police, reporting that his son had threatened him and tried to break down the door to his room. The Applicant reportedly told Police that due to his son's "constant" alcohol abuse he tries to ignore him as he believed that he may become aggressive and assault him. The son was taken to Mona Vale Police Station and an AVO was applied for by Police. He was then taken to stay with family in Dee Why. Early in the morning on 1 April 2022, reports were made by a family member who expressed concerns that they had overheard the son say he wanted to kill his parents. They wanted him to leave the Dee Why address. On 18 April 2022, the Applicant was named as the victim in an AVO for a period of two years.
On 28 April 2022, the Applicant's son died after Police attended the family home in response to a call by the Applicant's daughter about another domestic violence incident.
[2]
Why did the Applicant apply for a firearms licence?
In his statement the Applicant wrote that, as a student, before coming to Australia, and for about 10 years, he enjoyed target shooting training and competitions, at which he was very successful. In his evidence he said that although he remained interested in the sport he was just too busy trying to learn English and working 60-80 hours a week to pursue the hobby. In his evidence he said that, over the years, his son had asked him many times to get a licence so they could go shooting. He wrote that he is currently working in security industry and a number of his colleagues (security guards) are fans of target shooting and/or hunting. About a year ago he decided to revert to that hobby and again participate in shooting competitions, in addition to his other sporting activities: tennis, long-distance swimming and hiking. In his evidence he said that he is less likely to undertake significant hiking now due to his age.
In his response to the Respondent's submissions the Applicant wrote, in referring to the Respondent's reasons for refusal of his application, that his son was an "extremely controversial person". Under the influence of alcohol, he was very aggressive and unpredictable and he, his wife and their daughter, had requested Police intervention to calm him down in order to prevent further escalation. However, while not affected by alcohol (about 70-80% on average of all days within the last 20 years), his son was a "very kind man with a big soul and with a good and bright personality". At one stage he was able to keep away from alcohol for more than a year. In his evidence though, the Applicant said that his son had had an alcohol addiction for 20 years.
The Applicant said that he never planned to protect himself from his son with a firearm, as he was confident that as a strong man (187cm in height, weighing a muscly 100kg), and being fit including having self-defence skills, he could defend himself against his son. Most importantly, he said, he loved his son and always hoped that he would be able to keep himself away from alcohol for longer periods. He thought as his son became more mature he was aware of the negative impact of consuming alcohol on his health.
As to the relevance of the date of application, the Applicant said that there was no connection between the date of application and the fact that an AVO was in place. He said he had planned to resume shooting training a long time ago but pressure of work and his other activities such as mountaineering in Nepal and in New Zealand, he did not get around to applying.
Then, on 24 February 2022 Russia invaded Ukraine. He noted that although he was born in Moscow, he is ethnically Ukrainian, as was his son. His son had made a "strong decision" to go to Ukraine to join the International Legion of the Ukrainian Armed Forces; in his evidence he described his son as "impulsive". However, he considered his son was not sufficiently mature, was addicted to alcohol and also was not physically and mentally fit enough to fight. He said in his evidence that his son was nearly 40 and had the money for a ticket to Ukraine and could not be prevented from participating in what his son considered to be his duty. He and his ex-wife wanted to "slow [their son] down" and delay his departure. In cross examination he said he hoped his son would forget about the whole thing.
If his son did go to the Ukraine, he wanted to ensure that he had some survival skills - such as being able to shoot - which he would need for his protection. He offered his son a "training plan" and promised that he would apply for a firearms licence so he could train his son at the nearby gun club. He also proposed to help his son get fit and alcohol-free, but did not specify how he proposed to do that. His son agreed to postpone his enrolment into the International Ukrainian Legion and to start training sessions under his father's supervision after the Applicant had obtained his firearms licence. Within a few days the Applicant set about qualifying so as to be able to make a firearms licence application.
The Applicant said he understood that any gun club member could invite someone who does not have any firearms licence to visit the club's range and allow the person to shoot under the member's supervision. Just as he had been supervised and taught how to shoot for the purposes of gaining his firearms licence, he understood he could teach his son to shoot. He said that if his son was affected by alcohol he would not have taken him to the range. When referred in cross examination to s 6B of the Act and cl 129 of the Regulation he said he was unaware that his son, who was subject to an AVO, would not be permitted to shoot at the range as they had planned.
As to the conditions he would need to comply with if he were granted a licence the Applicant said he understood he had to attend 2 sessions at the club, but he planned to go in as many competitions as he could. The club is only 15 minutes from his home. Already, in the course of his training he has met some other like-minded enthusiasts.
The Applicant said he did not pose any threat to public safety. He has been an Australian resident and living in the same house for 31 years, and has never expressed any sort of aggression or deviant behaviour towards anyone. He believed that if he had not been a victim of his son's aggression, his application for a firearms licence would have been approved without any concerns about public safety.
[3]
What now are the Respondent's concerns about the threat to public safety?
Before me, the Respondent conceded that previous main concern about possible risk to public safety associated with the Applicant's son was no longer relevant, as he is dead.
The Respondent though pointed to the Applicant having applied for a firearms licence the day following a complaint being made to Police regarding his son, and at a time when an enforceable AVO was in place for the Applicant's protection. While not articulated, this may have been a concern that the Applicant proposed to arm himself for his protection against his son. The Applicant said that his only intention was to shoot at the gun club, enter competitions, and teach his son how to shoot.
The Respondent submitted that the Applicant had lacked an appreciation of the risk associated with firearms in promising his son that he would train him in the use of firearms when he should have been aware that that would not have been permitted. Further, the Applicant's evidence demonstrated a lack of awareness of his obligations in that he thought he had only to complete two shoots at the range per annum, whereas he was obliged to complete four: cls 29 and 107 of the Regulation.
The Applicant's son died less than a month after the Applicant applied for a firearms licence, and his death is subject to a coronial inquest. Chief Inspector Marks wrote that Police held concerns regarding the Applicant being granted a firearms licence prior to the coronial inquest being determined. It was conceded that there was no contention whatever that the Applicant was in any way implicated in his son's death.
The Chief Inspector also wrote that the Applicant's conduct in seeking a firearms licence in circumstances where he was experiencing serious domestic violence issues with his son suggested he did not appreciate the risks that firearms possession would pose to himself and others. The Applicant's firm evidence was that he had no intention of acquiring firearms and would only shoot at the club, where he could very cheaply hire a firearm for use while there.
[4]
Public interest
The Respondent contended that it is not in the public interest for the Applicant to hold a firearms licence: s 11(7) of the Act. The term is not expressly defined in the Act. It is well-settled though that "the public interest" is considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. The Tribunal exercises the discretion in s 11(7) of the Act in accordance with the Act's objects and underlying principles as set out in s 3 of the Act. The Tribunal's decision is to reflect the risk that an applicant will misuse a firearm in a way that impacts the public interest. The Tribunal has repeatedly said that an applicant is not required to discharge an almost impossible burden of proving a near absolute negative, but, rather, the Tribunal must take into account all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64]-[66].
The Applicant's evidence, which I accept, was that he had a desire to resume a long-held interest in target shooting, which was then overtaken by wanting to delay his son's departure to fight in Ukraine, and, in the event his son did go to fight in Ukraine, then to have taught him to shoot in an attempt to safeguard him. Private interests such as these, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. As I have observed many times, these matters include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
When assessing the public interest, only real and appreciable risk needs to be taken into account; minimal, fanciful or theoretical risk can be excluded from consideration: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32]. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of an applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141] and Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41].
From the available evidence, I accept that the Applicant has had a long-held interest in target shooting, dating back nearly 40 years to his student days in Russia. I also accept that, his interest in other sports such as tennis, long-distance swimming and mountaineering, as well as punishing work commitments of up to 80 hours a week, precluded him from taking up the sport again. The impetus for his application was when his adult son expressed a keen interest - his "duty" - to go to Ukraine to fight. I accept that the Applicant and his wife, hoped their son might re-consider if his departure were delayed. They regarded him as ill-equipped to undertake that role - he was unfit, an alcoholic and had no military skills, in particular, no skills in the use of weapons. I accept that it was for that reason that the Applicant sought a firearms licence so that he could hopefully dampen his son's enthusiasm, or at least, delay his son's departure by promising to train him. Even if they were unsuccessful in discouraging their son from going to Ukraine, the skills learnt might assist in better preparing him to undertake the dangerous role.
Unfortunately, the Applicant was mistaken in his belief that he would be able train his son at the shooting range. The Respondent submitted that this indicated a failure by the Applicant to understand the regulatory scheme with respect to the circumstances in which an unlicensed person may shoot at a range. Ultimately nothing turned on this as the Applicant never sought to have his son partake in such an arrangement. His son's attendance at the range and the necessary completion of the required form and inevitable disclosure of his history of AVOs would have immediately ended his prospects of undertaking any shooting activities. The Applicant nonetheless, in securing a firearms licence, would have achieved his primary goal of delaying his son's departure for the warzone.
The Applicant had described his son's alcohol abuse as "constant", but in what is likely to have been some wishful-thinking, said that, for the most part he was loving and kind except when he was affected by alcohol. It remains that there were very serious allegations of domestic violence and irrational conduct by the Applicant's son. I consider the Applicant was somewhat naïve in failing to appreciate the risk associated with equipping his son, who was prone to domestic violence, with firearms skills, in the event these were not utilised in Ukraine. I accept that the Applicant's ongoing close association with his son who had mental health issues including alcoholism, properly caused concern to Police when the Applicant applied for a firearms licence. That impediment, however, no longer exists.
The Respondent also pointed to the Applicant's understanding that he had to complete only 2, instead of the required 4, training sessions to meet the participation requirements for his licence. The Applicant, however, was very clear in his evidence that he wanted to shoot competitively and to train accordingly. The club is only 15 minutes from his home. I do not think he was at all likely to fail to meet his participation requirements by restricting his attendance to only the two sessions he may have thought were necessary.
As I discussed with the Respondent's solicitor at the hearing, I could not see the relevance of delaying the Applicant's firearms licence until the coronial inquest into his son's death was concluded, especially as there was no contention whatever that the Applicant was implicated in his death.
In summary, I do not consider the Applicant's conduct gives rise to a real and appreciable risk to public safety if he were to hold a firearms licence. I therefore do not find that it would be contrary to the public interest for a licence to be issued to the Applicant.
[5]
DECISION
The decision under review is set aside and the Applicant is granted a Category A firearms licence.
[6]
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: 06 June 2023
Parties
Applicant/Plaintiff:
Babi
Respondent/Defendant:
Commissioner of Police, NSW Police Force
Cases Cited (6)
Tribunal's approach
Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and, as I explained to the Applicant at the hearing, there is no presumption that the decision of the Commissioner was correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].