(a) to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace by - "

Under section 17 of the Act, the Chief Commissioner may not issue a licence unless satisfied that the Applicant for a licence is a fit and proper person. Under section 49(1)(f), the Chief Commissioner can cancel a licence if satisfied that the holder is no longer a fit and proper person. In this case, the Chief Commissioner cancelled Mr Coare's licence. Mr Coare ("the Applicant") appealed to the Firearms Appeals Committee and having failed there to recover his licence, applied to this Tribunal for review of the decision of that committee. The issue for me to decide was whether the Applicant is a fit and proper person to hold a firearms licence. I have divided that issue into three questions: first, the meaning of the expression "fit and proper person"; secondly, what relevant facts have been proved by the evidence that the Tribunal has heard and thirdly, whether those facts mean that the Applicant is not a fit and proper person to hold a firearms licence.

The Respondent referred me to some authorities which are sufficient to establish broad principles for interpreting the expression. In Australian Broadcasting Tribunal and Bond [1990] HCA 33; (1990) 94 ALR 11, his honour Chief Justice Mason said (at page 32):

".....the statutory concept of fit and proper person to hold the licence which is undefined, takes account of qualities and characteristics of the licensee apart from the matters mentioned in [the Act] .... the concept should not be narrowly construed or confined. It must extend to any aspect of fitness and propriety that is relevant to the public interest."

Further, their honours Justices Toohey and Gaudron later said (at page 56):

"The expression 'fit and proper person' standing alone carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of fit and proper person cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities."

In Siguenza v Secretary of the Department of Infrastructure (unreported, [2003] VSC 46, at paragraph 34) her honour Justice Balmford said:

"it is clear from the authorities that the test of a 'fit and proper person' must depend, in each case, on the purpose of the legislation under which the test is being applied".

Public safety is the purpose of the legislation under which this test is being applied. Apart from that, Parliament has left the expression undefined. That leaves the decision-maker a wide discretion to be exercised in the context of the statute. The context as I have said is most important - the Act deals with firearms and public safety. I must be satisfied that the Applicant is a fit and proper person to possess, carry and use inherently dangerous weapons without any threat to public safety and peace. In this context it is appropriate to consider the Applicant's behaviour towards other members of the public. A fit and proper person must at least be a rational mature adult, in my view.

I will not repeat all the evidence to weigh up versions of each alleged incident. On hearing the evidence of what has been happening in Mr Coare's neighbourhood, I was reminded of a book I read in school, "To Kill a Mockingbird" in which the recluse next door unexpectedly turns out to be the good guy, but that is not revealed until the last chapter or so. We do not have the book of what is going to happen in this neighbourhood only the evidence before the Tribunal.

Ms Fox, for the Respondent, summarised fairly those things which count against the Tribunal finding Mr Coare to be a fit and proper person. She did leave out of the picture the glimmers of good humour but there are anyway sufficient matters of a worrying nature for me to agree with the thrust of her submissions. I agree that Mr Coare's behaviour in the neighbourhood has been bizarre and irrational. Even here in the Tribunal hearing, he demonstrated that he sees nothing wrong with the way he has behaved. I am satisfied that he has retaliated out of proportion to events which annoyed him and that he has exaggerated events to see a slight from his neighbours where none was intended. I have considered the psychiatric evidence, Dr Kornan's report in particular, because that was an expert report. I gave it greater weight than the reports of two other doctors, which were brief, gave no details of assessment and provided no information about the writers' specific expertise. Dr Kornan's report was based on a single, albeit apparently lengthy interview. He described in that report Mr Coare's report about himself and Mr Coare's complaints of noise from the neighbours and what he had done in response to noise and the other activities which had annoyed him.

Dr Kornan's report was dated 30 August 2005. He saw Mr Coare on 24 August 2005. In summary, on page 6, Dr Kornan said:

"In overall terms it appears that this is a man who has become more combative as he has got older, but it does seem as if he has restricted himself to the type of behaviour that has occurred. I do not believe he is a danger to others, as far as I can determine."

"The question of whether or not he retains his firearms licence is of course a matter for the Tribunal to decide, with the totality of the evidence, and hearing all the witnesses available. From the narrower psychiatric viewpoint, all one could state is that there does not appear to be any immediate psychiatric illness or psychiatric intent which in itself would preclude him from holding a gun licence."

I accept that evidence. I have no difficulty with it. However, Dr Kornan really directs the Tribunal to the rest of the evidence. The Respondent called a number of witnesses.

Dean Jones said that he lived in the neighbourhood for ten years. He said that the Applicant would yell his head off and bounce balls when there were children in the Jones' backyard which is next to the Applicants. He said that the Applicant would look over the fence and walk up and down outside their house. He said that on the occasions when he had altercations with Mr Coare he had smelled alcohol on Mr Coare's breath. Mr Jones had even kept a diary of these sort of events for a while after the Firearms Appeals Committee decision in May 2004. The examples he referred to from the diary included that Mr Coare had been yelling at children from his backyard, mocking and mimicking them and that he told the Jones' son not to walk past his house. Mr Jones also said that the Applicant had once yelled out that if he ever got his guns back he would "even things up". There were diary notes from April 2004 to the 18 September 2004 and there were twelve separate incidents in those diary notes. Mr Jones said that he was concerned that the Applicant's behaviour was erratic as he didn't know what he would do.

Mr Coare disagreed with some of Mr Jones' version of events. He disagreed that he had said that he would "even things up" if he got his guns back. His version was that he said he could hit back once he lost his guns for good. That did not reassure me of his interest in public safety and peace. Mr Coare complained of the noise of the neighbourhood and people parking on his naturestrip. I accept that he did find his neighbours annoying and I accept that his reaction has not always been irrational or at least that it has not always been without cause. He produced a photograph of concrete which had been laid outside his house; it bore the name of the Jones' son and of another child carved in it. Mr Coare suggested that the children had thus defaced the concrete. I accept that they may have done that, but overall I find, on the basis of the evidence I have heard, that Mr Coare's reaction to the things which annoyed him has been out of proportion and has been irrational. There was no evidence that his neighbours were abnormally noisy or annoying.

Mrs Jones gave evidence of a similar nature to her husband's. She said Mr Coare would often yell out on his own in the backyard and reacted badly to the noise of children. She impressed me as a sensible person and was obviously distressed at discussing these matters with Mr Coare nearby. She said that she smelt alcohol on Mr Coare's breath on the occasion when they had an altercation. Mrs Jones said that when she heard Mr Coare yelling out he seemed to her to slur his words. Mr Coare did not deny the yelling out.

Mr Coare himself did not deny that he drinks alcohol every night. He said he has two or three cans. Then he agreed later that he told the doctor who provided a report in October 2004 Dr Myer-Scott that he had three standard drinks a night and "sometimes more". Mr Coare said when he was asked about this that he would have a glass of red to "finish it off". It gave me the impression that he wouldn't stop at three drinks or at four if he felt like it. Thus the evidence that altercations had occurred when he was drunk and consequently disinhibited seemed to me to be most likely to be true.

There was evidence of a similar nature from other neighbours. I will not recite all of it. There was Gary Cotchin, a neighbour of six years, Kenneth Townsend who has lived in the area for 40 years, Ralph Garth who has been a local for less than six years, Christopher and Jodie Larkin who lived nearby for ten years or so. They all gave the same sort of story: that the Applicant had been obviously annoyed by noise or by people parking on his naturestrip or outside his house and they reported the Applicant yelling in a loud voice when no one was present, tooting his horn for no apparent reason, singing or yelling out aloud, staring at the children who came near his house and sometimes making loud outbursts. The Applicant did not deny most of this behaviour but explained it as a sort of retaliation. By his own admission, the Applicant, after Mr Cotchin had bounced a ball with his son outside the Applicant's house, followed Mr Cotchin in his car to find out where Mr Cotchin lived, in order to retaliate by bouncing a ball and yelling outside Mr Cotchin's house.

In an undated statement which he had tendered in evidence, Mr Coare said:

"Whether I possess firearms or not has nothing to do with this fiasco of yelling out from the street and houses of this vicious group of people. I will exercise my right to make an equal noise from my boundaries. Of course this could not be achieved by me but I will endeavour to make a token retaliation. Meantime whilst I am simply stating incidents this clique of people are intent on the half truth and fabrication."

In my view, this determination to retaliate to ordinary neighbourhood noise with noise is immature and irrational, as is the expression of that determination in a statement to the Tribunal.

Mr Coare called Mrs Nettleship, a nearby resident. Mrs Nettleship said she had seen Mr Coare saluting in the front garden in his pink pyjamas. Mr Coare said the pyjamas were not pink and he had been feeding the birds. He did not deny the saluting. Saluting in the front garden in pyjamas is eccentric behaviour, but on its own would not affect the Tribunal's decision. However, added to the other evidence it contributes to a picture of behaviour which is worse than eccentric.

Another part of Mr Coare's undated statement refers to this incident. I include it here for what it reveals about Mr Coare's attitude to the Tribunal and about his insight. He said in the statement:

"Apparently I run around the garden in pink pyjamas singing La La hiding behind trees. I wonder when they will make a statement saying he jumped off the roof with a candle up his arse singing a star fell from heaven."

That may sound funny, but it was a very odd way to approach a formal hearing in the Tribunal. In the same document, describing what Mr Coare said was a typical day, he said:

"About 1.00 pm the Townsends were cutting their front lawn. Mrs Townsend and her grandkids were yelling loudly. Townsend was bellowing as usual. I could not understand what they were ranting about. I yelled out that I was changing the water in the bird bath to anyone who cared to listen and finished off with a Blah Blah then went inside to turn on the TV and drown out their noise."

That provides a further example of behaviour Mr Coare does not deny and which is in my view irrational. I need not recite in further detail the evidence from the neighbours and Mr Coare's response. Both Mr and Mrs Larkin reported that in about 2003 the worrying behaviour had escalated. Mrs Larkin said she had kept her children inside in the recent school holidays in order to avoid Mr Coare's retaliations to their noise. All the neighbours expressed varying degrees of concern about Mr Coare's outbursts and irrational behaviour. In the main, this concern appeared to me to be an inappropriate response. I find that the behaviour described (and for the most part not denied by Mr Coare) was irrational, unpredictable and at times frightening.

Mr Coare suggested there had been a conspiracy or fabrication amongst the neighbours, but there was no evidence of this. According to their oral evidence, some of the neighbours knew each other and some were not at all acquainted. Some of them said they were unaware that Mr Coare owned guns until they were taken away from him.

Mr Coare's demeanour at the hearing was inappropriate. He was argumentative. Sometimes persons unfamiliar with the process of the Tribunal do not know how to behave at a hearing, but Mr Coare's demeanour was not merely uninformed. He spoke of children real dislike. He expressed disbelief that they should be allowed to play and yell out near his house, in their own backyards (or front yards) or in his street. Mr Coare appeared to believe that the Jones' son, at the age of seven, had smashed Mr Coare's brick wall. He said that a 12 year old grandson of the Townsends had yelled and screamed outside for an hour and that this had occurred half a dozen times. That was not credible. It appeared to me that Mr Coare was not deliberately lying. Rather, he appeared to believe that had really occurred. I do not accept the boy behaved in that way, although there is no rational explanation for Mr Coare's belief that it occurred. The evidence overall showed that Mr Coare tends to exaggerate annoyances and is unable to judge what is an appropriate response.

I was impressed by the evidence of Sergeant Turner which was given for the Respondent. Sergeant Turner was cross examined at length by Mr Coare. He had reported an incident, in which he observed Mr Coare in early 2003, pacing up and down outside his house, as he said, ranting and raving for fifteen minutes in an incoherent way, with an aggressive demeanour. Sergeant Turner said that his friends in the street, the Larkins, had told him of rumours that Mr Coare had guns. Sergeant Turner followed a procedure which he said and I accept was usual police procedure. He checked whether it was true that Mr Coare had a firearms licence. When he discovered that it was true, he reported the matter and it was this report that lead to the suspension of Mr Coare's firearms licence and the ultimate cancellation of the licence. Mr Coare said that it was children screaming which had lead to his behaviour in front of Sergeant Turner, but even if that is true it was irrational, even bizarre, behaviour.

Mr Coare made a number of accusations while cross-examining Sergeant Turner, suggesting that the Sergeant had victimised him. There was no evidence to support that suggestion or any other accusations made by Mr Coare.

Mr Coare's own evidence was fairly scanty. He said more in cross examination and in response to cross examination by the Respondent's counsel than in his own evidence. He said that he has owned guns for 55 years. He agreed that he retaliates. He said that he was a tool maker and that he worked in sweatshops where, as he put it, you payback or go under. He said he always moderated his retaliation to create an equal and opposite force. The evidence indicated that his behaviour in the neighbourhood had often been more than that. The retaliation described was not equal and opposite; indeed, it seemed quite uncalled for. It was often inappropriate, irrational and bizarre. Mr Coare said that he had been taught firearms safety by his father and I accept that he has owned guns, apparently without incident, for a very long time. The exception was the death of his wife. The coroner found that she had suffered a self inflicted wound. Mr Coare is obviously a person with a complex story of his own. His hobby is apparently a passion and his guns are worth a lot of money. It is unfortunate that he is in dispute with his neighbours but sorting out the disputes is not a matter for the Tribunal. Mr Coare's own evidence and behaviours effectively supported the Respondent's contention that he is at times aggressive, and irrational and behaves bizarrely to other people.

I have considered whether these findings indicate that Mr Coare is not a fit and proper person in the context of the purpose of the Act and I am satisfied they indicate that he is not a fit and proper person to have a firearms licence.

He has behaved unpredictably and irrationally and his behaviour has frightened the neighbours. He obviously dislikes children and becomes upset by noise and what he sees as intrusions. He has exaggerated offences against himself and appears in the habit of imagining an intention to offend him where there was none and he has retaliated inappropriately to that. There were a number of credible witnesses, not just one unhappy or worried neighbour. All said they were concerned about Mr Coare's behaviour and would be more concerned if he had access to guns. There was no evidence that the neighbours had fabricated their evidence or victimised the Applicant. Even allowing that every story has two sides, the weight of the evidence was that Mr Coare has been aggressive, combative and unpredictable, even bizarre, that he drinks quite a lot, that he has carried grudges that he has been somewhat isolated, so the community could not have confidence that he was a safe person to have the possession of firearms. Several witnesses said that they would be very concerned if the Applicant had access to firearms. There was also some evidence that his combative behaviour has escalated of recent years.

There was no evidence that the Applicant has ever threatened anyone directly with a firearm or harmed anyone with a firearm. However, in my view, inappropriate use of a firearm can not be the only factor which would indicate a person falls short of being fit and proper to hold a firearms licence. The Applicant has been shown to behave frequently in a way which is irrational, combative and either childishly immature or bizarre. He is known to take dislikes to people and to bear grudges which are expressed in that bizarre behaviour. His neighbours said they are afraid of him. In my view, it would not be conducive to public safety and peace for the Applicant to possess firearms. For those reasons the decision under review is affirmed and the application is dismissed.