Carroll v Commissioner of Police, New South Wales Police Force

Carroll v Commissioner of Police, New South Wales Police Force - [2021] NSWCATAD 301 - NSWCATAD 2021 case summary — Zoe

[2]

reasons for decision

The applicant Mr Timothy James Carroll applied to this tribunal on 26 May 2021 for review of a decision by the respondent Commissioner to revoke his category AB firearms licence.
The applicant, a farmer who manages two properties in the Orange and Condobolin areas, first applied for a category AB firearms licence on 4 September 2003 on the ground of recreational hunting/vermin control. He reapplied for the licence in 2008, 2013 and 2018, relying on the same reason. On each application for a licence, and in his most recent application for a permit to acquire submitted on 11 May 2020, he specified as his safe storage location an address in Orange. His safe storage was inspected by police on 23 August 2011, the safe storage requirements being found to be met. The firearms were, however, at another location (at Borenore) as the applicant was in the process of moving house. The firearms were subsequently presented at Orange police, where their serial numbers were confirmed.
On 7 September 2018, the applicant's ex-wife, Ms Belinda Carroll, made a report to police about an incident that had occurred at the applicant's house when she called to collect their children after they had been visiting with their father. A child had become upset at having to return with his mother and an oral argument ensued as there had been an ongoing dispute about custody arrangements. Attending police reported no fears for the safety of either person.
On 16 May 2020, Ms Belinda Carroll attended Molong police station and expressed fears for the welfare of her family arising from the applicant's actions and attitudes. Although he had not been physically violent, during their relationship he had controlled finances, was jealous and would manipulate her into thinking she was at fault during arguments. On the basis of information provided by her, police formed the view that the applicant had a propensity for violence and that his behaviour had caused his ex-wife's emotional distress and fear. They also held grave concerns for her welfare. A provisional apprehended domestic violence order (ADVO) was obtained on 23 February 2021 (exhibit R1, p 47).
Police attended at the applicant's residence at Borenore to serve the order and take possession of his firearms in accordance with domestic violence legislation. When taking the firearms, Senior Constable Bujeia reported that the applicant's said, "I can get a gun whenever I want, I know heaps of people that have guns".
Consequently on the issue of the provisional ADVOs and concerns held by police, Mr Carroll's firearms licence was suspended on 29 June 2020 and on 25 February 2021 was revoked on the basis of his being subject to an enforceable interim apprehended violence order. He requested an internal review on 31 March 2021, also seeking an extension of time, which was granted. As the applicant was not notified of the outcome of the internal review within 21 days, the internal review was taken to have been finalized on or about 5 May 2021. His application for administrative review of the revocation decision was filed with this tribunal on 26 May 2021.

[4]

Mrs Belinda Carroll

The respondent's first witness was the applicant's ex-wife, Ms Belinda Carroll, who adopted her witness statements dated 16 May 2020 (exhibit R2, p 23 ff) and 6 June 2020 (exhibit R2, p 28 ff). In the former she stated that she had been in a relationship with the applicant since 2006 and they had been married in 2011. There were two children of the marriage, W**** J****(WJ) Carroll and H**** J****(HJ) Carroll. The couple had lived in Boree, but separated on 19 June 2016 because the applicant had an affair and were divorced in October 2017. They have shared custody of the children. After the separation, Tim (the applicant) departed and began living at his parents' place.
During the marriage they disputed frequently, and when they did Tim would come close to her face and scream "Well f*****g hit me then," which frightened her. She feels that he is manipulative and controlling, and that she is still being manipulated and controlled by him.
When she was expecting HJ, which was between early 2015 and October 2015, an incident occurred. They had a dog named Tally. Tim had to move the sheep from one paddock to the next, and went down in his utility, with Tally on the back. She heard him screaming at the dog because she was not doing the right thing. When he was screaming at her, she would jump off and back on the utility, and did not appear to be doing what he wanted her to do. Belinda went outside the house when she heard Tim yelling at the dog. The utility was parallel with the house and the driver's side was facing her. She saw Tim leave the driver's seat and grab Tally by the collar. He picked her up by the collar and slammed her onto the ground from about shoulder height, then leaned over and hit her multiple times with his right fist. He then stood up and appeared remorseful.
She saw him pick Tally up from the ground and put her on the back of the utility, and drove up to the house, telling her that Tally had fallen off the utility and broken her leg. Tim said he would take her to the vet and called her while he was there, saying that it was going to cost $3000 to fix her leg and he said they could not afford it. After returning home he put her down. That was the kind of aggression that she feared.
Sometime after they separated, around July 2016, Tim had come to see the boys and play with them. He would often come to the house as there was machinery there that he used for farming. In about mid-afternoon, he was playing with the boys and she was going to her sister's house, intending to take the children with her. Tim said, "So what are we going to do about us - are we getting back together or what?". She replied that "I still know that you are talking to her", which he denied. She picked up the boys and put them in the car. At some point, Tim walked out of the house and pushed open the fly screen door hard, which hit the wall, causing the handle to break. Belinda wanted to inspect his telephone for messages, but he refused and an altercation ensued. She said, "That's why we are not getting back together".
When she was in the driver's seat, Tim leaned in the door and gave the boys a kiss, saying "Be good to your mother boys. I love you. I won't be seeing you for a very long time". Tim walked to the house and she started reversing when Tim walked out of the side door with a long gun, which he put in the boot of his Falcon. She said, "What are you doing with that gun? You're not leaving these boys without a father". Tim returned to house the and started repairing the door handle. When she reached the road she telephoned Tim's parents and told them that Tim had a gun and that she was concerned that he was going to kill himself. They said they would go and see him, and did so. Within an hour, Tim messaged her to say that he was going to shoot a black and white border collie that was chasing the sheep, and that was the reason he had the gun. She believed that he was either going to kill himself or make her think that he was going to. She was terrified during the incident.
In September 2018, an incident occurred at Tim's parents' house in Orange when she went to collect the children. WJ was sitting on the bed refusing to go, while Tim was talking to him. After a brief argument she went to her car and HJ came with her. Tim's car was parked in the driveway and hers was just behind it. She was putting HJ in the car when Tim came out of the house saying, "How dare you get my family involved, get out of the f*****g way or I will push you out of the way". She began to reverse out of the driveway, fearing that Tim was going to hit her car. The matter was reported to police.
Since the separation, there had been ongoing disputes surrounding the children. She feels that Tim is making her feel scared about her custody of the children and that he is trying to make her feel that she did not have control and that he has all the control of the situation. He had said in the past that she could not afford to take him to court and had referred to her aunt and uncle, who went to the Family Court, her uncle obtaining full custody of the children. She believed he was trying to intimidate her by saying those things and that mothers do not always obtain custody.
They have telephone contact for the sake of the children and arranging matters surrounding them. Their conversations leave her feeling that he is unhinged, erratic and that he is going to hurt the boys. More recently he had been blaming her for putting the children at risk by sending them back to school during Covid and she feels he is trying to manipulate and control the situation. She feels he is trying to bully her into allowing him more access to the boys. More recently his behaviour has escalated and worsened and she feels that his state of mind is not right and that he could hurt the boys to get back at her.
On 14 May 2020, she told Tim's mother, Judy, that he was worrying her. She replied, "I don't know what's wrong with him, it could be this coronavirus, he has been very careful about coronavirus and social distancing". She telephoned Tim to discuss sending the boys to school, and he commented, "That'd be right, it's after the f****g fact that you have already sent them to school". She explained that she just wanted to talk to him about the issue, to which he replied, "Every time I talk to you I end up in the cop shop". She said that her contacting the police after the incident with the cars had been "warranted", but apologized as it seemed to be a bad choice of words.
After 14 May 2020, she began moving from her house with their children, dogs and horses, to another location. She has a new partner, Ben, with whom she has been for approximately three years and who has moved in with her. She genuinely does not feel safe in her own home and has taken her animals as she fears Tim could also hurt them. "Tim has not made any direct threats to me", she concluded, "but due to the past instances and issues, and my knowledge of him and his potential to be violent, I do not feel safe at the moment".
In the second witness statement, dated 6 June 2020, Ms Carroll attached the veterinary clinical records for their dog Tally. She also related another incident, which occurred on either 16 October 2015 or 29 October 2015. A government health care nurse came to the house to complete a newborn check on HJ. During the consultation she heard Tim screaming at a dog. He obtained a gun, saying words to the effect of "I'm f*****g sick of that dog". She went outside and pleaded with him not to shoot the dog. Tim's parents were there and said, "We will sort him out. You go back inside and finish your appointment"
On Christmas Day 2019, while Tim was spending time with WJ and HJ, her partner Ben arrived and Tim became antagonistic towards him. Ben said, "Mate, don't start, it's Christmas day". He replied, "I don't want to hear from you, it's none of your business". "He was very intimidating and tried to tower over Ben", she wrote. Soon after they left, she received a text from Tim that read, "I have never had a problem with Ben…. I hope Ben has a great Christmas. That should not have happened in front of my kids, so I think we need to sort this out".
On 20 May 2020, after the AVO became enforceable, she arranged for WJ to telephone Tim in accordance with prior arrangements. During the conversation he asked WJ a variety of questions that made her feel intimidated and concerned. They were talking about her parents' property called 'Mac's Run" and he asked WJ "Is there a house on the property?", And "Who lives in the house?". When she has interaction with Tim by telephone or text, she feels anxious and worried. Her legs become jittery and her heart palpitates. She becomes teary. He makes her feel small and helpless and she believes he knows the control he has over her. She had provided police with numerous text messages and diary notes that she had collected to support her fears of Tim.
Cross-examined by Mr Simpson on AVL at the hearing, Ms Carroll reiterated those points and explained that until 2019, the custody arrangements had not been fixed. The applicant had one day with the children in every 14, but wanted more and had threatened court proceedings. She did not wish to take the matter to court but in October 2020 she had instituted custody proceedings that are still ongoing.
In 2019 they had met in company of their respective mothers to discuss the custody arrangements. His attitude has been demanding and she later arranged to text his mother to make a time to collect the children rather than have any face-to-face meetings with him. In May 2020, he was saying he would go to court over the matter if she did not agree and said he had engaged a lawyer. The possibility of mediation had been raised and they had both completed the online part of the process in about May 2020, but he refused to take it further.
She had given police a USB stick containing text messages, together with the diaries that she had kept from before 2019 onwards as a record of their interactions relating to custody. The police copied and returned them. She had not requested an IAVO but simply wanted to feel safe. On 16 May she had attended at Molong police station. Tim had requested a welfare check on the children and she had gone to the police in connexion with that. The police had questioned her about the situation and told her that they had to issue an IAVO because of four events they were concerned about:

The striking and throwing of Tally. Asked if she had been present when it happened, the witness said she had been out in front of the house and could hear him as he was less than 300 or 400 m away.
The 2016 argument in which he had told the children that they would not be seeing him for a long time and had obtained a firearm.
The episode at his parents' house when one of the children had not wanted to leave his father and the applicant had threatened to ram her car. His father had been present at the time.
The incident at Christmas 2019 when he had confronted her new partner. Tim's mother had been there and saw part of the exchange. He had been the aggressor and Ms Carroll had intervened by standing between them as he was walking towards her partner.

[5]

Senior Constable Timothy Bujeia

Plainclothes S/C Bujeia adopted his statement dated 18 August 2021 (exhibit R2, with attachments prepared for the Local Court ADVO proceedings) in which he explained that he was the officer in charge in relation to the application for an ADVO and on 16 May 2020 had met with Belinda Carroll at Molong police station. She had informed him of fears she held for the welfare of her family because of her ex-husband and disclosed several incidents that had occurred in the past that had contributed to her fears. The witness expressed the view that the incidents were relevant to the way in which Belinda perceived Tim, a perception which he believed would heighten and exacerbate her fears.
She also said that she felt Tim had been acting irrationally of late and she felt that he was unhinged. During the conversation she was highly emotional, crying and at times struggled to bring herself to recount certain events. At approximately 9 p.m. on 16 May 2020, S/C Bujeia attended the applicant's property at Borenore to discuss the allegations and to seize his firearms because of the nature of the reports made. No-one appeared to be at home, however. It was clear to him that Belinda Carroll was afraid of the applicant for her own reasons, which the witness understood to have stemmed from years of dealing with him and ongoing custody issues.
On the basis of the information she provided, he strongly believed that the applicant had a propensity for violence. Although there were no reports of a physical assault, his behaviour appeared to have caused his ex-wife's emotional distress and fear and the witness held grave concerns for her welfare. He subsequently returned to the station and apply for a provisional ADVO, which was granted.
At about 12:40 a.m. on 17 May 2020, he returned to the applicant's property. Mr Carroll answered the door and they had a conversation that was captured on body-worn video (BWV). During that conversation, an allegation was put to him regarding the farm dog Tally "being thrown to the ground and punched" by him. Mr Carroll denied hurting the dog and said, "the dog Tally was a working dog that I had when I lived at Yarawongah…. The first time I asked the dog back to work, we were in the front paddock of Yarawongah. I asked the dog, Belinda wasn't with me at the time so it's interesting that she says that. I was down in the front paddock, I couldn't have been much further from the house than that paddock, and asked the dog to jump on the back of a Toyota Land Cruiser ute. The dog jumped and hit the side, she didn't quite make it, she actually broke her hip in that incident, so it's funny Belinda says it she wasn't with me at the time".
S/C Bujeia served the applicant with the provisional ADVO and explained its effect. He subsequently led the officers to his garage, where his firearms were seized. At the time the applicant said words to the effect that, "I can get a gun whenever I want, I know heaps of people that have guns". The ADVO matter was next listed for mention on 26 August 2021. The witness understood that there was an agreement between the police prosecutor and the applicant's representatives that if there were no further breaches of the ADVO, the matter would be withdrawn. As at the date of the statement, no breaches of the ADVO had been recorded on the police database, COPS.
On the basis of the information provided by the applicant's ex-wife and the comments he made when his firearms were seized, the witness held concerns regarding his licence being reinstated, despite the ADVO application having been withdrawn. The matters reported were relatively recent, and to the witness's knowledge the custody issues between the applicant and his ex-wife remained unsettled.
In oral evidence the witness said that the BWV footage (which was shown at the hearing) mostly confirmed the applicant's evidence in his affidavit of 5 October 2021 (exhibit A2), but he did not recall the part of that affidavit in which the applicant explained to the officers that he had been drinking and asked if they were sure it was permissible for him to handle firearms, as he felt uncomfortable about handling firearms in front of police after he had been drinking (exhibit A2, paras 15, 16). He disagreed with the applicant's denial of saying the words, "I can get a gun whenever I want, I know heaps of people that have guns", which appeared at 9:21 of the recording, followed by the words "if I wanted to be silly".
In cross-examination the witness agreed that the applicant's statement "There are 25 people I could call [if he wanted to obtain a gun]" was made in the context of police taking possession of a gun that was at the time in the possession of the applicant's father. The witness had said he would need the key as Michael Carroll could not open it as he had no right of access and the applicant had the only key. The witness could not recall if the applicant had meant that he intended to obtain the firearm, but remembered that he had been boasting arrogantly because S/C Bujeia had said he was taking the key. He was undermining the police authority to take his guns.
It was common for farmers to keep firearms, so it was quite possible that he knew 25 people with guns. His manner was not aggressive, and he started to cry, then being comforted by his wife [Mrs Lucinda Carroll]. Ms Belinda Carroll had given S/C Bujeia a USB chip and her diaries, of which he copied extracts. He had looked through the diaries and had copied all entries relevant to domestic violence.

[6]

Mr Timothy Carroll

In oral evidence at the hearing by telephone link (AVL being unavailable to him), the applicant Timothy Carroll adopted his affidavit dated 5 October 2021 (exhibit A2) and his lengthy and detailed affidavit of 10 February 2021 prepared for the purposes of the then expected Local Court ADVO proceedings (part exhibit A1), in which he denied absolutely any intention of causing any type of harm to his ex-wife or engaging in violence: "I never have and I never would". He had never been charged with an offence of violence or dishonesty. His only court matter was a drink-driving matter in, he believed, 2005 when he was at university.
There were two children of his marriage with Belinda, WJ and HJ. He had remarried in October 2019, and his wife is Lucinda Carroll. They have one child together, G**** M**** Carroll. The applicant is currently involved in Federal Circuit Court proceedings with Belinda, seeking shared custody of their two children.
After HJ's birth he had noticed a distinct change in Belinda's personality, and the marriage became less happy. The marriage ended in June 2016 after Belinda accused him of having an affair with his now wife Lucinda. They had become friends in the preceding months, but had not had an affair.
He wanted more time with the children, but was willing to accept what Belinda wanted, especially given the ages of the children. At the time he had been living alone, but his mother, Judith, helped by taking care of the children one day a week so that Belinda could work.
He noticed a further change in Belinda's attitude towards him after he remarried, and again after he told the children that they would be getting a new brother or sister in July 2020. In early 2020 he initiated mediation through Relationships Australia and had completed an intake session, as Belinda also had. The mediation was booked in for late May 2020, but was cancelled after the ADVO was made.
In May 2020 the applicant and Belinda had been disagreeing about the children attending school during the COVID lockdown. Belinda is a teacher and was required to work, whereas his employment was flexible, so he was able to look after the children on the days she worked to prevent them from having to attend school, as he was worried about their being exposed to the virus. When he arrived at the school on 14 May 2020, he received a text from Belinda saying that she had concerns for her safety and would be withholding the children until those concerns had been sorted out. That was the first time he had heard of such concerns from Belinda. The school principal offered him some support, and he left in tears. He went directly to Orange police station where he was met by an officer who said he was expecting him. The officer said words to the effect of, "Belinda and her mother had attended the station earlier in the day and they were planning to take the children. They were worried about your reaction and thought you would cause them harm. They left here upset and disappointed as I told them I could not issue an ADVO against someone who had not done anything wrong". The officer urged him to obtain legal advice and reassured him that he was not in trouble.
On 15 May 2020 he returned to Orange police station to ask for a welfare check. He later received a call from the police who said that they had contacted the children and had asked Belinda to allow them to call him. That was the last contact he had before officers from Molong police station turned up at his home in the early hours of 17 May 2020 and served him with an ADVO and seized his firearms.
He denied that he and Belinda would fight a great deal during their relationship and he had never come right up into her face and screamed, "Well f****g hit me then". The allegation relating to Tally was untrue - and she had injured her leg while jumping onto the truck. He had been about 400 m from the house down an incline at the time, and as far as he was aware, Belinda was inside the house. He had taken Tally to the vet and was told that they could operate on the leg but it was likely that she would be unable to use it properly. The vet recommended that she be euthanized, and he agreed. He does not mistreat animals and did not grab Tally by the collar or slam her to the ground. He did not hit Tally with his right fist as he considered her to be a valuable working dog. The veterenarian told him that the injury might be related to inadequate calcium, possibly due to feeding pups. At the time of the accident, Tally was still weaning the pups.
He told Belinda what had happened at the veterinarian's, explaining that Tally's leg could be fixed but would cost upwards of $2000 and she would likely never work again. Belinda agreed for him to bring the dog home, euthanize and bury her.
In July 2016 when Belinda was accusing him of exchanging messages with other women she attempted to seize his telephone and he left the area, but did not damage any doorhandles or push the fly screen hard. He was not living in the house at that time and did not go inside. Belinda put the boys into the car to leave, and he said, "Be good to your mother boys, I may not see you for a while". He did not threaten or allude to suicide. He did not go inside and obtain a firearm and had never held or carried a firearm in an effort to intimidate someone. In the September 2018 incident he had not yelled at Belinda, nor did he drive a car aggressively towards her or anyone else. He denied that he had ever tried to manipulate or control a situation or that he had belittled Belinda, and he would never physically hurt his children. He was not emotionally abusive before separation or afterwards.
On Christmas Day Belinda's boyfriend Ben had threatened him in front of the children and his mother when they were collecting the children. Ben had said to him, "You are a lowlife piece of s**t. Thanks for f****g telling us about it". He had replied, "Not here, not now and not in front of my mother and our children". He had said to Belinda, "Please do not bring him to changeover again". It was that conduct that caused him to send a text to Belinda saying, "I have never had a problem with Ben. I hope Ben has a great Christmas. It should not have happened in front of my kids, so I think we need to sort this out".
In relation to that conversation, WJ had wanted to tell him about his grandfather's farm and he was asking questions, as the child was excited to talk about the farm. There was no agenda on his part other than having a conversation with WJ. He had never known Belinda to own a personal diary, except for when they were at university. He does not have any mental health issues and has never been diagnosed with such issues, scheduled or sought assistance for mental health issues. He attached a letter from his general practitioner, Dr Joseph McRae, dated 12 August 2020, attesting to his "excellent physical and mental condition" and general character and behaviour.
He has held a firearms licence since around 2003, related to his work as a farmer. He is required to use firearms as part of his job. He is employed as a contract farm manager and is required to shoot feral animals and to put down sick or injured stock. At present he could not do his job properly and had lost several large contracts, reducing his earning capacity.
In his affidavit of 5 October 2021 (exhibit A2) the applicant explained that he is a farmer and also works as an agricultural contractor. He has been engaged in such work for approximately 17 years and his work requires him to use a firearm for the eradication of ferals and as a paid contract worker to dispatch sick and injured animals. He has lived at Borenore since October 2017 on a 600-hectare property of which he is the full-time contracted farm manager, and has been since 2017. He also leases a 260-hectare property near Arthurville, which produces grain and has experienced problems with feral animals. He had previously held a profit share lease on a 700 ha block near Boree. The lease was for 4 years and came to an end in or around June 2018. That property was primarily for fat lamb production, sheep meat and wool growing.
His work requires him occasionally to travel to properties around New South Wales. The distances he travels mean that he regularly stays overnight at the property where he has been working, leaving very early in the morning or returning very late at night.
On 16 May 2020, he was served with the provisional ADVO. He and his wife had been out for dinner and had consumed some alcohol. They arrived home at approximately 10 p.m. and retired shortly after that. At around 12:30 a.m., police attended at his home. He had been asleep and was awakened. After outlining the process whereby his firearms were collected at that time, the affidavit refers to a short conversation with the officers which included an exchange to the effect that he said he had been drinking and enquired whether it would be permissible for him to handle firearms. The process of obtaining the guns from the gun safe took about 20 minutes and he was not asked any questions by either officer while he was removing them from the safe and placing them in cases. He denied that he had ever said the words, "I can get a gun whenever I want, I know heaps of people that have guns", to either police officer.
He had never been charged with an offence of violence or dishonesty and his only court matter was a drink-driving charge that he believed occurred in 2005. At the time when he deposed as to those facts, he did not have access to a copy of his criminal history and had relied solely on his recollection. He had been certain that he was only convicted in relation to drink-driving, and only referred to that offence. Although he was aware that he had been charged with other matters previously, he did not recall the details of the charges and did not believe it was necessary to refer to them because he had not been convicted.
Since then he has seen a copy of his criminal history and that he had been placed on a s 10 bond for the offences of "driver state false name or address" and "unlicensed for class - first offence". He did not recall the details of the events that the charges were based on as did not specifically recall providing a false name or address. He accepted that the offence occurred as described in the document and that he pleaded guilty to it. At the time he was 20 years old and he has not been charged with any criminal offence since then.
He keeps all guns that he owns at his parents' Orange residence, which is approximately 20 km from his current residence, and he attends there frequently. His work requires him to use firearms and also requires him to travel to properties that are some distance apart. Occasionally, he will take one or more of his firearms to a different location and keep it there overnight. That came before a period of days, but never more than a week. Once he no longer requires a firearm, he returns it to the Orange address. Each time he is required to take a firearm to a location for work, he always takes with him a gun safe to ensure that he remains compliant with safe storage requirements.
If he is travelling early in the morning or late at night, he occasionally collects a firearm the day before he needed it for use, or return it the day after. On those occasions, he will keep the firearms at his residence and for that reason had installed a gun safe there. The firearms that were at his residence with him on 16 May 2020 were there because of an overnight stay. The one that remained at Orange was not required, and consequently remained at his primary safe storage location. He had intended to spend 17 May 2020 with a friend and more experienced shooter.being taught how to reload different rounds of ammunition for a safer and more accurate shot.
In oral evidence by telephone at the hearing, the applicant reiterated those points and stated that he needed his licence for vermin control (usually foxes, rabbits, dogs and deer) on both properties where he worked. Usually he would organize a specific time for a hunt, and there was not necessarily any urgency. At Borenore he would organize a vermin eradication program and would try to plan it in advance, and did not necessarily need to keep a gun on the property. He preferred to hunt alone, but others could do it.
His marriage to Belinda had broken down because they had grown apart, and there were currently custody issues pending in the Federal Circuit Court. He did not recall yelling at her and did not believe he had ever stood close to her face and challenged her to hit him. As regards the incident with Tally or 26 November 2015, he had not screamed at the dog or taken her by the collar, slammed and hit her. She had not jumped off the utility.
He did not deny asking Belinda whether they could get back together, but said he had not refused to allow her to examine his telephone and had not broken a screen door handle. Asked whether he had told the boys that he was leaving and they would not be seeing him for a very long time, he said that what he had actually said was that they would not be seeing him for a while. He did not recall Belinda telling him not to leave the boys without a father.

[7]

Mr Michael Carroll

The applicant's father, Mr Michael Carroll, giving oral evidence by telephone at the hearing adopted his affidavit of 10 February 2021 (exhibit A1, pp 33 - 35) in which he deposed to receiving a telephone call from Belinda Carroll on a date in July 2016. He did not, however, recall her telling him that Tim had a gun and she was concerned that he was going to kill himself. At no point did he tell Belinda that she needed to "go back and take the gun off him". That was false.
He recalled that Belinda's voice was sharp and loud. She told him she was driving and had his two grandsons in the vehicle. He did recall telling Belinda not to drive anywhere and said he would come and meet her. Several times during that conversation he asked her to pull the vehicle over and park, but she declined and said she would keep driving. He spoke to Belinda again a short time later and again insisted that she pull the vehicle over, and she again declined. She said she would stop at the Escort Way and Borenore intersection and he could meet her there.
He and Judy met Belinda at the intersection. She had the children with her. He was talking to Belinda but could not recall the exact words. During the conversation, Belinda was speaking incoherently. Within a short period she changed completely, became composed and started laughing. During her relationship with Tim, and after their separation, he had observed that behaviour on a number of occasions.
As regards the September 2018 incident, he said that WJ and HJ were often reluctant to go home when they were visiting their grandparents' residence. When it was time for both of them to go home, they would often hide. On several occasions Belinda would yell at Tim, demanding that he take the children into her vehicle. He would observe Tim on each occasion explain in a calm tone to the boys why they needed to go home with Belinda and that she loved them. During the course of their relationship, and afterwards, he had not once seen Tim say anything untoward about Belinda.
In September 2018, Belinda arrived at their residence and went inside to collect HJ. Shortly afterwards, he heard Belinda, with raised angry voice coming from inside the house. She was yelling at Tim to make the children go home with her. Mr Carroll went inside while Belinda continued to yell. Tim was in one of the bedrooms calmly speaking to WJ trying to get him to come out and go home with Belinda. Judy was present in the bedroom. Tim walked out of the room and was shortly followed by Judy, so Mr Carroll entered the bedroom, whereupon Belinda insisted that he have Tim get WJ into the car to go home. Belinda then left the room.
He then picked up WJ himself, as he continued to cry and kept saying he wanted to stay. Mr Carroll carried him out of the bedroom, where Judy gave him a kiss and then he walked outside with WJ. He walked towards Belinda's car with WJ in his arms. Tim was already outside, and Mr Carroll heard him ask Belinda to move her vehicle. He recalled Belinda saying, "Why?", And Tim replied, "So I can go".
During the incident, Tim did not raise his voice, swear or threaten to push Belinda. Belinda then jumped into her vehicle and reversed out of the driveway. Tim got into his vehicle and then left; he did not take off down the street. Mr Carroll spoke to police in relation to that incident and has had no contact since. He could not recall the October 2015 incident.
In oral evidence at the hearing, Mr Carroll adopted his affidavit of 10 February 2021 (exhibit A1) and explained that he has a category AB firearms licence, which until October 2020 been a category A only. His son Tim would store firearms in his safe, but he did not know how many as he has no key. Tim came to collect one or more of them whenever they were needed, on any regular basis. The majority of the time, his firearms were at Mr Carroll's place.

[8]

Mrs Judith Carroll

The applicant also relied on an affidavit by his mother, Mrs Judith Carroll (a nurse retired because of injury), sworn on 10 February 2021, in which she deposed that during the course of Tim's relationship with Belinda, she had observed that Belinda's moods would regularly change. That became more frequent after the birth of HJ and continued after Tim's separation from Belinda.
After the separation, she tried to remain on friendly terms with Belinda and would make herself available to listen to her, and would look after the children when required. Belinda's behaviour escalated when Tim and Lucinda told the children at the end of April 2020 that they would be getting a brother or sister.
Before May 2020, they spent time with the children whenever they could. Mrs Carroll babysat the children whenever Belinda asked her to, no matter how short the notice might have been. She cared for both children one set day a week, which was usually a Tuesday. Belinda asked to change the day from Tuesday to Thursday, so she changed her own work commitments to accommodate her request. When WJ started school, she had HJ one set day a week, on Thursdays. That ceased when the ADVO arose.
After the ADVO was in place, it was several weeks before she saw the children again. Belinda allowed her to spend one hour with the children on dates, times and places that suited her, and that time was supervised by Belinda or her mother or both.
She had never seen Tim speak to Belinda in an aggressive or threatening way.
As regards the July 2016 incident, she recalled going in the car with her husband Michael to meet with Belinda and the children at the Borenore/Escort Way intersection. When they arrived, Belinda was aggressive and jumped out of her car. Mrs Carol went over to her and the children to see if they were all right. Michael and Belinda had a discussion in her vehicle, which she did not hear. But shortly afterwards, Belinda was composed and laughing.
In the September 2018 incident, Belinda and WJ had arrived to collect HJ from her residence pursuant to an agreed arrangement. Tim was at their home spending time with HJ. When Belinda said it was time to leave, WJ ran into a bedroom and hid under the bed covers, refusing to leave. Belinda went into the room, and Mrs Carroll heard her raise her voice as she tried to convince WJ to leave. Tim had followed WJ into the bedroom and calmly spoke to him, trying to convince him to come out and go home with Belinda. Belinda then started yelling at Tim.
Mrs Carroll followed Belinda into the room, where Tim was standing away from Belinda, with his hands in his pockets. She heard Belinda say in an aggressive tone, "Tim are you going to help me out?", to which Tim replied quietly, "I will never push or force the boys to leave". Tim appeared upset and then left the bedroom. Belinda again tried to convince WJ to go, without success. Mrs Carroll then left the room and passed Michael in the hallway. Michael walked into the bedroom where Belinda and WJ were. Shortly afterwards, Belinda came into the living room, grabbed HJ up from the floor and said, "There is no way he was ever going to help me", and she went to put him in the car.
Tim was already outside preparing to leave. She remained in the house, so she is unaware of what happened outside. Michael came out of the bedroom with WJ in his arms. Mrs Carol kissed him and Michael took him to Belinda's vehicle. Shortly afterwards she heard Tim's utility drive out and then Belinda left. She did not observe Tim take off down the street. He was already outside when Belinda went outside with the children. She spoke to the police about that matter.
Turning to the 14 May 2020 incident, Mrs Carroll deposed that she recalled Belinda telephoning her in the morning. She said to Belinda, "I don't know what was wrong with him (meaning Tim). It could be the coronavirus". At the time she was aware that Tim was worried about the pandemic and concerned that the children could catch it if they attended school. Although both she and her husband were often at Tim and Belinda's home, Mrs Carroll had no recollection of the incident in October 2015.
The deponent recalled that at Christmas 2019, she had travelled in the car with the children to meet Belinda for changeover at about 2:00 p.m. Belinda's partner was with her. It was incorrect to state that Belinda came to Tim's residence. They all left in Tim's vehicle, and the boys were eager to unwrap their new bicycle.
She was with the children when she observed Belinda's partner step up and was right in Tim's face. His behaviour made it appear that he was intoxicated, as he was being belligerent. Mrs Carol heard him say "f*****g" and then heard Tim respond, saying, "Hang on don't speak like that in front of my mother and my boys". Belinda then stepped forward and pushed her partner to the chest. She then heard Tim say, "Please don't bring him to changeover again". Mrs Carroll was not cross-examined and did not give oral evidence.

[9]

Respondent's submissions

The respondent relied on written submissions dated 20 August 2021 (exhibit R3) which, after setting out the background to the application and summarizing the applicable law, contended that there were a number of issues relevant to the question of whether it is in the public interest for the applicant to continue to hold a firearms licence.
First, the issue that caused the most concern was the allegations of intimidating behaviour and violence that had been reported to police by the applicant's ex-wife. In particular,

she reported being concerned that the applicant could hurt the children to get back at her;
although the applicant was not physically abusive during their relationship, he would control finances, was jealous and would manipulate her into thinking she was at fault during arguments, conduct that is considered coercive control, the cumulative effect of which is seen as depriving victims of their autonomy and independence;
in almost every argument, he would come up close in her face and yell at her to "hit me";
when she was expecting their second child, she reported seeing the applicant becoming frustrated with a farm dog named Tally, slamming the dog to the ground from the back of the utility and proceeding to punch it. The dog sustained a compound fracture and was put down by the applicant.
An argument allegedly occurred shortly after their separation, during which the applicant slammed open the screen door to the house, causing the handle to break, and threw his telephone on the lawn. When his ex-wife tried to pick it up, he grabbed it from her. She later placed the children in the car to leave, and alleged that the applicant leaned in the door and said to the children, "Be good to your mother boys, I love you, I won't be seeing you for a very long time". He then went inside the house and reappeared holding a firearm. His ex-wife asked what he was doing with it and said "Don't you leave these boys without a father". She subsequently contacted and met the applicant's parents because of her fears, and to discuss what had happened. She formed the view that his actions were intended to intimidate her into believing that he was going to harm himself.

Senior Constable Bujeia deposed that the information Belinda Carroll gave him in May 2020 caused him to believe that the applicant had a propensity for violence, and he had grave concerns for her welfare, given that his behaviour appeared to have caused his ex-wife's emotional distress and fear. He also expressed concerns regarding the applicant's licence being reinstated in circumstances where the reports by Belinda Carroll were relatively recent, custody issues were still ongoing before the Family Court and there was no evidence as to when they would be resolved.
In light of the applicant's alleged violence and intimidation (one incident allegedly involving a firearm) and the possibility of future disputes, the respondent submitted that the tribunal could not be satisfied that there was no risk to public safety if the applicant were to be issued with a licence.
The second issue relevant to the public interest was his prior criminal history. Although he had not been charged with an offence since 2005 and had been reissued with firearms licences despite his record, he had claimed that he had never been charged with an offence of violence or dishonesty, and that his only court matter was a drink driving matter in 2005. That is not the full extent of his criminal history, and he had been found guilty of an offence of dishonesty, namely "driver/rider state false name or address", for which he was made subject to a s 10 bond. Although his offences were not prescribed offences for the purposes of the Act, they demonstrated a disregard for laws and regulations directed towards public safety.
Thirdly, it appeared that the applicant might have failed to notify the Commissioner of a change in his safe storage address. When police attended his home at Borenore to serve the provisional ADVO, seven firearms were being stored at that address, although the applicant had always previously nominated an Orange address as his safe storage on all relevant applications. If the firearms were being stored at his residence for 14 days or more, he would appear to have been in violation of cl 17(3) of the Regulation. Only one of his firearms was stored at his Orange safe storage address, and police were unable to gain access to it as the key provided by the applicant did not fit.
That conduct, when considered against his comment to police that he "can get a gun whenever I want, I know heaps of people that have guns", raised concerns about his compliance with the Act's requirements. Any loss of income by the applicant as a result of the revocation should not inhibit the tribunal from exercising a discretion adversely to him: Hill v Commissioner of Police, [2002] NSWADT 218, [22].
The tribunal was required to view the applicant's conduct as a whole. The applicant's

alleged involvement in domestic dispute and incidents of violence;
prior criminal conduct, which included an offence involving dishonesty; and
failure to notify the Commissioner of a change of safe storage address could not result in a conclusion that there was virtually no risk in his holding a licence.

In oral submissions at the hearing, the respondent reiterated those points and explained that there was no dispute between the parties about the legal principles governing the case. But the facts were in dispute, and the tribunal should accept Belinda Carroll's version, as she had kept notes of conversations and interactions with her ex-husband, and was clear in her answers, except in relation to the incident over the dog while she was pregnant. Mr Michael Carroll's statement for the Local Court proceedings did not say that Belinda had not called him and informed him that Tim had a gun, he only said he could not recall it. Her memory was sharper, because she kept notes.
As regards the second public interest issue, his criminal history was in 2005 and therefore less relevant today, but there was concern that it included an offence of dishonesty, and also his comment to the effect that "I can get a gun….". The applicant denies ever saying that, but gives no alternative version, so it was necessary to review the BWV footage. S/C Bugeia thought his behaviour arrogant, and though not necessarily indicating any intention to obtain a gun, did tend to show his attitude to police and to the licensing scheme.
The risks presented by his conduct remained current because of the ongoing custody battle, which is the main reason for anxiety. The risk could abate in the future, but while the proceedings were current, the appropriate course was to revoke the applicant's licence, and he could reapply later when conditions had changed.
In reply the respondent acknowledged that the tribunal was presented with a difficult task because the facts were disputed. But Belinda Carroll saw the applicant's communications as intimidating, although she did not seek an ADVO and the police officer obtained the IAVO of his own motion because of concerns over the applicant's conduct. The respondent conceded that the evidence was insufficient to show a breach of safe storage regulations, but the applicant had said that his need for a firearm was seldom urgent, and he could plan to obtain one when he needed it.

[10]

Legal framework

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

[11]

Public interest

The only ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20.
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
The respondent relied on a familiar passage in which 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 under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
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 6 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]).
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66] 66].
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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
The respondent contended that it would not be in the public interest for the applicant to hold a firearms licence for several reasons. These may be considered in the order in which the respondent's written submissions advance them.

[12]

Concerns about intimidating behaviour

The matter which the respondent submitted caused the most concern was the allegations of intimidating behaviour and violence that had been reported to police by the applicant's ex-wife. First, Ms Belinda Carroll expressed the fear that the applicant could hurt the children in order to get back at her. No factual basis for that concern was put forward, and on the contrary the evidence shows the applicant as a kind and loving father. Next, she stated that although the applicant was not physically abusive during their relationship, he would control finances, was jealous and would manipulate her into thinking she was at fault during arguments.
It is common in marriages, however, for one spouse or the other to take primary responsibility for organizing family finances. A certain amount of jealousy is also not uncommon. Indeed, as the French say, "Il n'y a pas d'amour sans jalousie" [1] . It is a matter of degree, and the evidence contains no instances of extreme or destructive jealousy, or indeed jealousy of any kind. As for manipulating her into thinking she was at fault during arguments, that is unfortunately quite common in domestic disagreements, indeed it is almost the very nature of argument. Even if correct, however, those allegations have little relevance to public safety.
Ms Carroll also stated that in almost every argument, he would come up close to her face and yell at her to "hit me", while the applicant denies ever doing so. It seems unlikely that Ms Carroll would fabricate such a specific detail, however, and it appears probable that the applicant said something of that nature on at least one occasion. That is provocative and unhelpful conduct, but it is not a threat of violence, and indeed there is no evidence that the applicant had ever threatened violence against anyone.
In her statement of 16 May 2020 (part exhibit R2, p 24), Ms Carroll recounts the incident that occurred while she was expecting HJ, between the start of 2015 and October 2015, when the applicant was moving sheep from one paddock to another. She reports hearing him, when she was inside the house, screaming at their dog Tally because she was not doing the right thing. She went outside and saw the applicant pick dog up by the collar and slam her on the ground from about shoulder height, before hitting her several times. The dog suffered a compound fracture and had to be put down.
The applicant's version, in his affidavit of 10 February 2021 (part exhibit A1, p 23) was that Tally, a kelpie cross working dog, had recently delivered a litter and it was the first time she had been working with him since then. He was about 400 m from the house down an incline. He called the dog away from a mob of sheep and told her to get up onto the truck. She jumped up but struck the side steel board of the metal tray and injured her leg. He believed that to be the case as he heard the thud and saw her fall to the ground yelping. He saw the incident and rushed to her, placing her into the truck. When he picked her up he noticed her leg was floppy and bent at an odd angle. He denied screaming at her or that she had jumped off the utility, and said he would never Il-treat an animal, especially a valuable working dog.
Ms Carroll claimed to have witnessed only a part of the incident and gave no estimate of how far the utility was from the house at the time, whereas the applicant estimates 400 m. In the absence of evidence of any other instance of ill-treatment of animals, it seems more probable that she misinterpreted what she could see and hear. The applicant's calling the dog away from a flock of sheep and ordering her into the truck could have been mistaken for him yelling angrily at the dog. I find that the applicant's account of this incident is the correct one.
Next, Ms Carroll states that some time after the separation, in about July 2016, there was a dispute when the applicant said to her, "So what are we going to do about us are we getting back together or what?" She replied, "I still know that you are talking to her", which he denied. She demanded to see is telephone, whereupon he threw it on the lawn and said, "Well f****g have it then". At some point he walked out of the house and pushed the flyscreen, breaking the handle. She got into the driving seat of her car and Tim went around to the other side and leaned in the window, gave WJ a kiss and said "Be good to your mother boys, I love you, I won't be seeing you for a very long time" and subsequently walked out of the side door of the house with a long gun, which he placed in the boot of his Falcon. She said, "What are you doing with that gun? You're not leaving these boys without a father". At that point she contacted his parents to express concerns that he was going to self-harm.
The applicant's account in his affidavit of 10 February 2021 describes Belinda attempting to seize his telephone and beginning to push and shove him in the chest, but denies that he threw the telephone on the ground. He stated that he did not react but left the area, did not damage any door handles or push the fly screen hard. He was not living in the house at the time and did not go inside or obtain a firearm. He has never held or carried a firearm in an effort to intimidate someone. After Belinda had put the boys in the car to leave, he said, "Be good to your mother boys, I may not see you for a while", but did not threaten or allude to suicide. He says he does not remember any conversation about getting back together and did not snatch the telephone from her grasp. The two versions are thus radically different and it is difficult to draw a conclusion about which one is correct. There is some corroboration, however.
Mr Michael Carroll recalled receiving a telephone call from Belinda on the day in question in July 2016, but did not recall her telling him that "Tim has a gun and that I was concerned that he was going to kill himself". At no point did he tell her to go back and take the gun from him, but did tell her not to drive anywhere and that he would come over to meet the. When he and his wife met Belinda as agreed, he was talking to her but could not recall the words that were said. "Belinda was speaking incoherently. Within a short period of time Belinda changed completely, she became composed and started laughing. During Belinda's relationship with Tim and after their separation I had observed that behaviour on a number of occasions" (exhibit A1, pp - 35 - 33). Mrs Judith Carroll recalls that when they arrived to meet Belinda and the children, Belinda was aggressive and jumped out of her car. She went over to her and the children to see if they were all right. Michael and Belinda had a discussion in her vehicle. "I did not hear this conversation. But shortly afterwards, Belinda was composed and laughing".
In light of the other evidence, it is not plausible that the applicant would intentionally distress his children by foreshadowing a long separation (or worse) for the purpose of manipulating his ex-wife. His parents both describe Belinda's aggressive and incoherent manner at the time and the way in which she suddenly changed and became composed and started laughing, a pattern which they saw repeated on other occasions. As the applicant's parents, they might, with all due respect, be thought to take a particularly favourable attitude to their son's position. But as a paramedic and a retired nurse respectively, they may be presumed to have had considerable experience of observing fragile and agitated or distressed people. For those and other reasons, the applicant's version of the incident is to be preferred.
Ms Belinda Carroll gave her account of these episodes to S/C Bujeia when she attended at Molong police station in connexion with the welfare check the applicant had requested and said they caused her fears for the welfare of her family. She also said that the applicant was critical of her ability to mother her children and spoke of custody proceedings, attempting to intimidate her into thinking that she would lose custody of her children. There is no evidence that she is or was an abusive mother, but there is evidence from three sources that when the children had been staying with their grandparents pursuant to arrangements for the applicant to be with them, they would run away when she arrived to take them home, sometimes hiding under blankets, and becoming tearful and distressed and needing to be cajoled by their father to get into her car. It must be unusual for young boys to be so upset about going home with their mother.
The parties are currently involved in custody proceedings in the Federal Circuit Court, and the stresses involved in such litigation are well known. As the respondent pointed out, firearms are sometimes involved where there are domestic disputes. Any evidence of domestic violence or threatened violence must be viewed with great seriousness.
On the other hand, the applicant has no history or reports of violence or threatened violence on his record, has never previously been the subject of an ADVO and has no contraventions of firearms legislation. He has never been suspected of using firearms in a careless way or brandishing them or otherwise using them for the purposes of intimidation. His ex-wife expressly says that he had never been physically abusive, a proposition which the respondent accepts. Although it is not yet known when the custody proceedings will be resolved, the parties have not been living together for some time now and the applicant has remarried, all of which must tend to reduce the amount of friction and stress between them. Ms Belinda Carroll states that he has an intimidating personality, but there is also evidence of her own volatile disposition.
The applicant tendered a quite emphatic reference by Dr Joseph McRae dated 12 August 2020 (exhibit A1, p 31), who has been his general practitioner since 1985, on the day he was born. Dr McRae finds him to be in excellent physical and mental condition. "There is no evidence in the past or currently of any mental health issues. I do not have any record of any abnormal behaviour. In my opinion he is of excellent character, and I have no reason to suggest any past abnormal behaviour regarding his ex-wife. In my opinion he is absolutely no threat to do any harm to his children. In my opinion any accusations against him are false".
On the basis of all the evidence, I conclude that the concerns about intimidating behaviour by the applicant have little foundation and do not Iead to the result that it would be contrary to the public interest for the applicant to hold a firearms licence, and I so find.

[13]

Criminal history

The second ground advanced by the respondent on the public interest issue is the applicant's prior criminal history. He was charged and found guilty of a number of traffic offences between 2002 and 2005, namely:

5 November 2002, special category driver driving with special range PCA - s 10 bond for 12 months,
2 August 2005, using an unregistered vehicle on the road - dismissed under s 10,
2 August 2005, using an uninsured motor vehicle - dismissed under s 10,
2 August 2005, low range PCA - $100 fine and three months disqualification,
2 August 2005, motorcycle rider not wearing helmet - fined,
28 June 2005, driver or rider stating false name or address - s 10 bond for 12 months,
28 June 2005, unlicensed for class, first offence - s 10 bond for 12 months.

As the respondent pointed out, he had claimed that he had never been charged with an offence of violence or dishonesty, and that his only court matter was a drink-driving matter in 2005. But he had been found guilty of an offence of dishonesty, being "driver/rider state false name or address", for which she was made subject to a s 10 bond for 12 months. The respondent submitted that while the offences for which he had been charged and found guilty were not prescribed offences for the purposes of the Act, they demonstrated a disregard for laws and regulations directed towards public safety, particularly in relation to traffic and licensing matters.
The applicant stated that at the time he had deposed those facts, he did not have access to a copy of his criminal history and relied solely on recollection. When asked about his criminal history, he understood that he should disclose any convictions, but was certain that he had only been convicted in relation to drink-driving, and only referred to that offence. While he was aware that he had been charged with other matters previously, he did not recall the details of the charges and did not believe it was necessary to refer to them because he had not been convicted.
He did not specifically recall the details of the events and did not specifically recall providing a false name or address. He accepted that the offence occurred as described in the document, and that he pleaded guilty to the charge at the time. On 20 May 2005, he was 20 years old. He had not been charged with any criminal offence since then (exhibit A2, p 5).
At the hearing the respondent conceded that as the applicant's last contravention was in 2005, his criminal history overall was now less relevant, but contended that there remained a concern because it included an offence of dishonesty.
Providing a false name or address is indeed an offence of dishonesty, although the usual connotation of that phrase is the activities of swindlers, such as obtaining property by false pretences or obtaining credit by fraud, whereas in this case it was part of a traffic violation and there is no other blemish of that nature on the applicant's record. It may also be noted that on three occasions after the conviction he applied to renew his licence and was issued with a licence each time. In my view the applicant's criminal history does not now warrant licence revocation.

[14]

Safe storage concern

The respondent's third basis for its case on the public interest was that on information based to the police it appeared that the applicant may have failed to notify the Commissioner of the change in his safe storage address within 14 days as required by cl 17(3). When they attended his Borenore home to serve the provisional ADVO and collect his firearms on 17 May 2020, seven firearms were being stored there although the applicant had always previously nominated his parents' Orange address as his safe storage location on all relevant applications. As his father did not have the appropriate licence at the time, he has no key to the Orange safe, but the applicant later presented the eighth firearm at Orange police station.
When police arrived at his Borenore home at 12:40 AM on 17 May, the applicant answered the door and they had a conversation that was captured on body worn video (BWV). When he was handing over his firearms to police at his garage where they were stored, he had a conversation with S/C Bujeia during which he was quoted as saying, "I can get a gun whenever I want, I know heaps of people that have guns". His conduct, the respondent contended, together with that comment, raised considerable concerns regarding his compliance with the strict requirements under the Act, which are designed to achieve public safety.
In cross-examination S/C Bujeia did not suggest that the remark meant that the applicant intended to obtain a firearm by improper means, explaining that he could not recall that aspect of the conversation, but acknowledged that his conduct was not aggressive and that he started to cry, being comforted by his wife [Mrs Lucinda Carroll].
The BWV footage was played at the hearing, and while the audio was somewhat indistinct, it generally supported the officer's account. Not included in the officer's evidence, however, were the concluding words of the comment, "if I wanted to be silly", which alters the flavour of the remark somewhat, making it seem more an expression of mild irritation at being awakened at 12:40. The officer described the applicant's conduct as "boasting arrogantly" because he was taking the key to the Orange safe, and felt that he was "undermining our authority to take his guns".
It should be remembered that the applicant and his wife had been out that evening and had dined well, retiring to bed when they came home. The applicant was roused from sleep by the police and was probably still half asleep when he met them at his front door. His comment was frivolous and inappropriate, but as the respondent acknowledged, it did not represent an actual intention.
The applicant explained that his usual practice was to keep his firearms at Orange and collect one or more when he needed it, and subsequently returning it. There is no evidence before the tribunal to show that he retained a firearm at Borenore for longer than 14 days at a time. At the hearing the respondent very properly conceded that the evidence was insufficient to show that a breach of the safe storage provisions. He had previously passed safe storage inspections and there are no reports of any careless or inappropriate handling or storage of firearms on his part. Indeed, when police arrived to collect his firearms, he was reluctant to handle them himself because he had consumed alcoholic refreshments earlier in the evening. I conclude that safe storage considerations do not warrant revocation of his firearms licence and that on all the evidence it would not be contrary to the public interest for him to hold a licence.. The decision under review is to be set aside.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (2)