Bailey v Commissioner of Police, NSW Police Force

Judgment (14 paragraphs)

[1]

REASONS FOR DECISION

The Applicant, James Bailey held a Category AB firearms licence which was to expire on 6 October 2021. On 1 January 2020 the Applicant's licence was suspended, and, on 16 September 2020, the Respondent decided to revoke the licence. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

[2]

Relevant legislation

The general principles of the Firearms Act 1996 (NSW) (the Act) are set out in s 3 of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (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 sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Domestic circumstances: ss 11(4)(a) and 24(2)(a) of the Act

Section 24(2)(a) of the Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. Section 11(4)(a) of the Act provides that a licence must not be issued if the Commissioner, and hence the Tribunal on review, has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of the applicant's way of living and domestic circumstances. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal, in considering the term "reasonable cause to believe" referred to Austrac Operations Pty Ltd v New South Wales (2003) FCA 1013 and New South Wales v Taylor [2001] HCA 15; (2001) 178 ALR 32, and determined that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant's domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.
The Respondent relied on the events of 1 January 2020, in particular the contemporaneous evidence provided by Anna and Jacob and the Applicant's continuing relationship with Anna.
In her statement to Police on the night of the incident, Anna described that the Applicant: grabbed me and he threw me across the floor and I felt my head like cracking against the floor and he came back out and he I'm sorry, and he was grabbing me by the hair ...
In contrast, in the letter, Anna wrote that when she had returned home, she began to verbally abuse the Applicant who was in bed and that he had got out of bed and pushed her out of the room. She stumbled and fell, hitting her head on the concrete floor; the Applicant came to her assistance.
Notwithstanding the dismissal of the charges and the ADVOs against the Applicant, the Tribunal is to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70. In taking criminal conduct into account, the Tribunal may apply a lesser standard of proof than the criminal standard: Joseph at [60].
In her statement in these proceedings Anna wrote that she did not intend to call the Police and had simply called an ambulance because she had hit her head and there was blood. She assumed Police attended the house because they had been called by the ambulance. It was never her intention to have the Applicant charged with any offence or to have an AVO against him. She said she was angry, but not fearful. Before me, she said that it was not a violent incident and the Applicant had not shoved her overly hard, although he had used two hands. She fell, she said, because she was intoxicated.
She recalled that the Applicant came to assist her when she banged her head as there was blood and he was moving her hair to see where the blood was coming from. She now thinks that, due to how drunk she was and her past relationship, she had thought the Applicant was pulling her hair, but realised he was simply trying to help her.
She said that she could recall almost nothing about what she said to the Police as she was so drunk at the time. She reportedly told Police she had drunk 2 bottles of wine, she wrote in her statement that she had consumed 4 bottles of wine, and before me, said it was at least that many. She said she was also angry and upset, as she had previously been in a violent domestic relationship, which had made her jealous when the Applicant had shown attention to another woman earlier in the evening.
Before me, the Applicant said that Anna was very intoxicated when she came home and she had gone into the bedroom where he was trying to sleep. He said he pushed her out of the room, she fell, and that he went to help her. He had no intention of hurting her; he just wanted her out of the room. He said she was just so drunk and upset.
Anna said she felt it was improper for the Police to have interviewed her on the night because of how drunk she was. Once she had sobered up, she said, she thought back on the matter and was then able to provide a more accurate statement to the Police, and consequently wrote the letter.
In the letter she and Jacob wrote that Jacob had heard Anna arguing with the Applicant and then saw her on the floor; there was a brief scuffle between him and the Applicant. Before me, the Applicant said that there had been "miscommunication" with Jacob about what had occurred between him and Anna, and that had led to their altercation. It all happened very quickly, he said. From the account of both Anna and the Applicant, Jacob's intervention appears to have been in response to his concern for his mother, although from the Police report he had not seen the physical altercation.
The Respondent also relied on the Applicant's own account of what occurred. The Applicant's account when first spoken to by Police was reported that he said: I didn't mean to do anything, I pushed her away from me and she fell over …I seen blood and I went to help her up.
I accept that in the Applicant's contemporaneous account he admitted pushing Anna away from him; however, he has never sought to deny this. What he does dispute is his intention to cause her harm. On the night of the incident the Applicant participated in an electronically recorded interview where he gave a version of events, which importantly, is consistent with the letter. His evidence was that he sought to get Anna out of the room so he could sleep. Anna's version since the incident is that she was so intoxicated that, when pushed, she fell over, injuring herself.
On the night of the incident Anna was also asked if the Applicant had previously assaulted her to which she replied: I don't want to say this but yeah he has.
Anna denied in her evidence that the Applicant had ever hit her before. As to having told Police that the Applicant had previously assaulted her, she said she did not know what she had said because she was so intoxicated.
Before me the Applicant denied that he had ever hit Anna or been violent towards her. He was referred to the Police evidence that there was a hole in the pantry door as a result of a previous altercation, but he pointed out, that he had hit the door, not Anna. Anna said that the pantry door was "flimsy". Anna also told Police on the night of the incident that the Applicant had "hurt, like grabbed" her son previously and that scared her a lot and that she feared being physically hurt or her children being hurt by the Applicant.
Ordinarily, significant weight would be given to contemporaneous accounts, however, here, Anna, whose contact with the ambulance service led to the chain of events which culminated in the revocation of the Applicant's firearms licence, was extremely drunk. She was angry with the Applicant and it was she who appears to have been the instigator in the altercation which led to her injuries, which, on balance, were accidentally sustained when she fell because of her state of inebriation.
The Applicant said that Anna had been affected by having been in a violent relationship in the past and that had made her very insecure. He said she was "jealous" and knew how to "press his buttons". The Applicant said that things had changed since the incident in that they now talk things through more. There is less pressure now, too, that the drought is over.
Anna wrote in her statement that "at no time has violence played a part in [the] relationship", the Respondent submitted that it is not uncommon for victims of domestic violence to later retract statements, particularly where victims remain in domestic relationships with the partner who was violent. It is only a matter of speculation that this is what occurred; the evidence, I have found supports a finding that, on balance, it was Anna who was the aggressor in the altercation.
In Manning v Commissioner of Police [2020] NSWCATAD 111, Professor Walker SM placed significant weight on the interim domestic violence order on the Applicant, even though the common assault charges related to the domestic violence incident were withdrawn. He stated at [51] and [62]: [51] The applicant was made subject to IAVOs for the purpose of protecting his wife and children, which were amended (by deletion of the reference to the children) and ultimately withdrawn on 7 June 2019 when the common assault charges were withdrawn. Although the two counts of common assault (domestic violence) arising from the incident were withdrawn as a result of Mrs Manning's not attending court, the episode is a serious matter that must be taken into account when assessing the applicant's fitness and propriety. Victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions, and it is possible that she did not attend court for that reason. It is also possible that Mrs Manning may have opted out of the prosecutions in the hope of salvaging the marriage, as they have three children. There is, however, no direct evidence from either spouse on that point or on any other matter. ... [62] Taking a balanced view of risk to the public, there are real grounds for concern in this matter. The most significant factor in this case is the nature of the domestic violence incident involving the applicant and Mrs Manning. Any involvement of a firearm in a domestic argument, whether it is pointed or brandished or not, is a matter of serious concern ...
In Manning though the PAVOs were extended on 3 occasions, and did not proceed, it appears, because Mrs Manning declined to give evidence in the criminal proceedings. The Senior Member speculated as to why that might have been, including whether there may have been fear of recrimination. In this matter, though, Anna, only days after the incident, sought to clarify her position as to what had occurred and to have the charges withdrawn. There was no evidence whatever that she had, in any way, been persuaded to change her account. Importantly, in Manning, the evidence was of the applicant brandishing a firearm, although he did not point it at his wife. In addition, in Manning there was evidence of failure to safely store the applicant's firearms and/or ammunition. Further, there was confidential evidence which appears to have been taken into account in deciding that the applicant in that matter was not a fit and proper person to hold a firearms licence.
The Respondent further submitted that the Applicant's own evidence provides a basis to find that his domestic circumstances mean he may not exercise continuous and responsible control over firearms. In his interview with Police on 1 January 2020, the Applicant did not object to the suggestion that the relationship was "volatile". The Applicant said that the couple had "had blues before", that Anna was "very hard" to live with and said that he had never met anyone in his life that can "push [his] buttons like that". The Applicant said that when Anna "goes off" she just "off tap" and is "hard to control", and he expressed concerns about not wanting to have "that sort of relationship" around their children. He said that he had tried to separate from her a few times, but he loves her. Even if their relationship was, at the time of the incident, a volatile one, there was no evidence that in the several years they had been together that firearms had ever been accessed or threatened in a disagreement.
Anna told Police that alcohol was "usually" a factor when conflicts in their relationship occurred. The Applicant agreed in his evidence that when either or both of them had been "drinking", which I understood to mean "drinking to excess", there was more likely to be disputes. He said that there were financial pressures associated with the farm, especially during the drought. These days they both drink less: "a beer here and there".
Anna and the Applicant are still together and there have been no other incidents between them requiring Police intervention. The Respondent submitted though that the incident occurred only 2.5 years ago, so there had been little time to establish revised domestic circumstances. The Applicant and Anna are engaged to be married in November 2022. Anna said she would describe their domestic situation as peaceful, happy and loving and she does not fear that the Applicant would hurt her in any way. In particular, she held no fears should he be granted a firearms licence and have possession of firearms. Jacob, she said, moved out several months ago to live with his girlfriend.
The evidence is that the Applicant and Anna have now resolved their differences and are to shortly be married. Much of the pressure on the relationship, I accept, has been because of Anna's unfortunate history and because of strain associated with their being on the land during the drought. I also accept that they have substantially reduced their alcohol intake, which had previously provided the context in which many of their disagreements had occurred.
I have found that Anna was, at least on that occasion, the provocative party. The Respondent submitted that there is no basis for differentiating between conduct of an applicant and the conduct of another which may impact on public safety in the context of a firearms license: Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149 at [31]. For the reasons discussed above, I consider that both the Applicant and Anna have amended their ways. This matter differs from the recent case of Ryan v Commissioner of Police [2021] NSWCATAD 23 where, amongst other factors, the Applicant lived with her partner who had an extensive criminal history.
Both parties referred to Nasr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 138 (Nasr), in which the Commissioner revoked the licence on the basis of convictions in the Local Court for offences of common assault, malicious damage and possession of an offensive weapon. Mr Nasr was placed on a $500 bond for 2 years and ordered to pay compensation in respect of the conviction for malicious damage. The facts of that matter were quite different to the present matter, and that case is unhelpful.
The Respondent in the internal review had referred to Carter v Commissioner of Police, New South Wales Police Service [2000] NSWADT 55, where a licence application was refused on the basis of the applicant having been subject to a firearms offence, a PAVO and information obtained by Police of her alleged intemperate habits and irresponsible use of a firearm whilst intoxicated. Again, this case is so factually different from the present matter as to also be unhelpful.
In Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), the Tribunal recently accepted that, in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of a firearm; see [103]. In Grenfell, the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a PAVO that was, as here, later withdrawn. While I generally agree with the principle in Grenfell, I observe that in that case, the applicant had a history of alleged domestic violence incidents and allegations have been made against him by three former long term partners. That is clearly very different to the present matter.

Public interest

The Respondent also contended that it is not in the public interest for the Applicant to hold a firearms licence: s 24(2)(d) of the Act and Clause 20 of the Regulation. The term is not expressly defined in the Act or Regulation. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objects 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 deciding whether to exercise a discretion adversely to an individual.
The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conduct of the 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].
The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].
The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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. 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, at [64] - [66]. The principle in Ward 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] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].
The Applicant relied heavily on the fact that the charges laid against him were withdrawn, that he has no prior recorded criminal offences and that he remains in a loving relationship with Anna. I have found that, on balance, the Applicant was not physically violent towards Anna on 1 January 2020. While there was clear evidence of an additional incident when the Applicant damaged the "flimsy" pantry door, I do not consider that this is indicative of an unacceptable pattern of behaviour, especially given the evidence of the improvement in their domestic circumstances over the last 2.5 years.
The Respondent submitted that any report of domestic violence or unrest in premises where firearms are stored is an unacceptable risk which outweighs the privilege of the Applicant continuing to hold a firearms licence. I consider the Respondent has overstated the position - I do not accept that any report of domestic violence poses an unacceptable risk. Until tested, either in the criminal courts or otherwise, caution must be exercised about allegations of domestic violence. It was also submitted that the Tribunal should be mindful of the fact that domestic violence incidents remain largely unreported and there is a need to protect vulnerable members of society. Again, I agree with the principle, but these are not the circumstances of the present matter. Further, it was submitted, the existence of firearms within a domestic setting has the potential to significantly escalate any conflicts which may arise. Each matter must be determined on its facts; the allegations against the Applicant were ill-founded.
I observe that, in February 2021, the local licensing officer, Senior Constable Turnbull noted that there was no objection to the Applicant's firearms licence being returned. The Respondent pointed out that attending Police had seized the Applicant's firearms when they attended, and that this assessment of the risk was to be preferred. No evidence was called to explain Senior Constable Turnbull's view, and it unclear if it was in response to the charges and ADVO having been discontinued or otherwise. Consequently, little weight is afforded to the Senior Constable's views.
The Applicant gave evidence of his strong need for a firearms licence, as he owns a 90 acre property and is a primary producer; his need for a firearms licence is not based on a hobby, but as a tool of trade. The Applicant gave evidence that although the farm is not his main source of income, he runs sheep and cattle on the property for sale. The Applicant said that he needs firearms for the humane euthanising of sick and injured stock and for vermin control on the property. He said it is heart-breaking to watch animals in pain and he gave compelling evidence about losing 14-20 lambs (worth $200-$300 each) to foxes and wild dogs. He has had to call on licensed friends and neighbours to put livestock down, and, in the meantime, has to watch the animals in pain, especially if his associates are not immediately available. He also explained that his nearest neighbour is 10-12 kms away. He said he had tried alternative methods of vermin control, without success. For example, he has dogs, so the use of bait is not an option. Professional shooters are expensive and also, by the time the shooter gets to the property, the fox or wild dog has gone. His dogs might be barking at a feral intruder in the middle of the night - their usual time to attack - and, if he had a firearm, he could attend to the vermin.
I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66].
Private interests such as the need to undertake vermin control and euthanise stock 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].
The caveat in McGrath is that those on the land having access to firearms must be law-abiding. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. From the available evidence, the Applicant and his partner have previously had a somewhat volatile relationship when significant quantities of alcohol have been consumed, especially in times of stress. The evidence is now that the stresses associated with rural life are largely behind them and that they do not consume alcohol to the extent that they previously have. Ironically, the loss of livestock and the inability to deal with vermin is itself creating some stress.
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 it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant's interest in holding a firearms licence.
The evidence that there was a confrontation between the Applicant and his partner in the early hours of New Year's Day 2020, and a scuffle with her son who had apparently misread the circumstances, does not, in my view, establish a real and appreciable risk to public safety, in circumstances where the Applicant has held a firearms licence for many years without any transgressions, and also has a clear criminal record.

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Judgment (14 paragraphs)

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