This is an application brought by the Applicant seeking review of decisions under the Firearms Act 1996 (the Act) by a delegate of the Commissioner of Police (the Respondent). The delegate determined to revoke the Applicant's category AB firearm licence.
[2]
Background
The Applicant was issued with a category AB firearms licence on 9 February 2023. The Applicant is a primary producer in that she is a grazier and cattle farmer and operates a farm in northern NSW with her husband. There is no dispute that the Applicant has a genuine use for a firearm.
On 3 September 2021, after two days of arguing, the Applicant's husband packed some of his belongings to go and stay elsewhere. This led to a physical altercation between the Applicant's husband, the Applicant and the older children who did not want the Applicant's husband to leave. Police spoke with both the Applicant and the Applicant's husband. The Applicant's husband was arrested.
As the police were aware that the Applicant's husband was the registered owner of several firearms, the police returned to the Applicant's home to seize the firearms. They discovered that a 12-gauge shotgun was loaded with live ammunition and an extra firearm that was not registered was in the safe. Another firearm was in a bag on a bench and was not safely stored. The police ultimately withdrew all of the charges except two firearms offences. The Applicant's husband's licence was suspended. The body worn footage of the police officers' conversations with the Applicant and her husband, the arrest of her husband, the inspection of the firearms safe and the seizure of the firearms are in evidence.
According to the police report, during the days leading to these events "various pressures of living in a pandemic riddled environment began to build". The Applicant's oral evidence was consistent with this as she was trying to continue to tend to the property and home-school four of her children due to the COVID lock-down. The Applicant and her husband have five children.
The body worn footage of the conversation between the police and the Applicant as well as the police and the Applicant's husband is in evidence.
Since at least 30 September 2022, the Applicant and her husband were involved in a dispute with the owner of a neighbouring property (the Neighbour). While the neighbour owns the property, he does not reside there but lives inter-State. The Neighbour has a registered right of carriageway through the Applicant's property which was established prior to the Applicant and her husband purchasing their home. According to the Affidavit of Constable Andrew Rae, the road is:
… extremely narrow, single lane, surrounded on either side by grass ….
After the Applicant and her husband purchased their property, the Neighbour obtained council approval to conduct a camping ground on his property. This required the consent of the Applicant and the Applicant's husband however at no time was the signature of the Applicant obtained on the application form and whether the Applicant's husband's consent was obtained is a matter of controversy. According to the Applicant's evidence:
It would appear that [the Neighbour] approached the [my husband] in November 2019 when he was by himself and had [him] sign one page of the "Application for Development" document ... It is doubtful that [my husband] understood what he was signing as [my husband] received an acquired brain injury when he was about 20 years old (in about 1988) after he fell off a horse…. I recall [my husband] informing me in about November 2019 that [the Neighbour] had given him something to sign for a toilet… I understood this to mean that [the Neighbour] was putting an application for a septic system at his shed. I didn't really give it another through until about August 2022 when I realised the piece of paper that [my husband] may have something more to it…. For reasons unknown to me, [the] Council did provide conditional consent to [the Neighbour] DA without any consultation or further discussion with [my husband and me].
After obtaining Council approval, the Neighbour's property has been used as a commercial enterprise by way of a camping ground and at the time of the hearing, the carriageway was used by tourists and guests who frequented the camping site. The Applicant and her husband have become increasingly concerned and frustrated with:
1. The number of vehicles now using the carriageway which in parts is a single lane and impossible for two vehicles to travel along it in differing directions without having to leave the carriageway and drive onto the Applicant's land.
2. The number of vehicles doing u-turns and driving off the road onto their land.
3. The times that vehicles are using the track which is day and night.
4. The campsite has access limited to 30 people but that, according to the number of vehicles, the Neighbour has more campers on his property than is permitted.
5. The failure of those using the carriageway to close gates and/or the removal of gates which threatens the security of their property and safety of their animals.
6. The speed that many of the vehicles travel when using the road which is unsafe for the Applicant's animals and family.
7. The inappropriateness of the carriageway, being a modest dirt track on a cattle farm, being utilised for a commercial enterprise which sees a great many vehicles needing to use it at all hours.
The Applicant's evidence is that she and her husband have witnessed vehicles leaving the carriageway on many occasions and at times, doing u-turns, people stopping on the carriageway, leaving their vehicles and walking onto their property. This in turn has limited their ability to use certain areas of their land for their animals and particularly their cattle to graze. At times, strangers have ended up at their front door rather than the camp site.
The Applicant's evidence was that she did not have any issue with the easement itself and was content to allow access to the Applicant's land but in changing the permitted use of the Neighbour's land to a commercial enterprise, this has created a situation where the carriageway is being used for a purpose that was never intended and which has caused many problems.
On 29 September 2022, the Applicant and the Neighbour had an argument regarding signage that the Neighbour had erected without their consent, advertising the camp site. The argument, which remained verbal, had become heated and the Applicant started to film the incident. According to the police report, the Applicant's husband tried to antagonise the Neighbour to hit him but the parties ultimately went their separate ways.
On 7 November 2022, the Applicant's husband, and her son (who was 15 years old at the time) were replacing a gate that had been removed that separated their property from the Neighbour's property. The Neighbour drove past while the Applicant's husband and son were working and then later returned. When the Neighbour returned to the site, the Applicant's husband and son were still installing the gate. The Neighbour must have exited his vehicle at some time. Either an argument started while the Neighbour was still in the vehicle or when he got out. The incident escalated and became physical. According to the police report, all three sustained minor abrasions. The Neighbour and the Applicant's husband both called the police. Three conflicting versions of the events were given to the police by the Neighbour, the Applicant's husband and the Applicant's son. Due to the conflicting accounts, no action was taken.
On 24 March 2023, the Applicant and her husband were involved in a physical altercation with the Neighbour. The Neighbour had arranged for the carriageway to be graded. According to the police report, the Neighbour had sent an email informing the Applicant of his intent but received no reply and made no further attempt to give notice or obtain the Applicant's consent which was sent on 8 November 2022. A copy of that email is in evidence. The Applicant explains in her affidavit evidence that the purported email used by the Neighbour was not received as the Neighbour had misspelt the email address. I accept the Applicant's evidence that she had not received any email from the Neighbour and had been given no notice of the Neighbour's intentions.
On 23 March 2023 or 24 March 2023, the Neighbour and the tradesperson started to grade the road. According to the police report, the Neighbour was parked on the carriageway but according to the Applicant, he was parked on the land on the Applicant's property that was not part of the easement.
The Applicant and her husband initially saw the Neighbour but in driving towards the car of the Neighbour also saw an unknown person in heavy equipment in the second bull paddock. When the cars approached each other, the Applicant asked the Neighbour what he was doing and said words to the effect of:
You can't just drive wherever you like. You are trespassing on our property.
While the conversation continued, the grader moved to the Applicant's horse paddock. The Applicant and her husband, who were in a vehicle together, drove in front of the grader to stop it in the context of not knowing what was being done on their land. The Applicant and her husband exited the vehicle to speak with the tradesperson. The tradesperson turned around and drove the grader back to the second bull paddock.
The Applicant's husband then returned to the vehicle and the Applicant remained on foot. The Applicant began to walk towards the gateway to her home. The Neighbour moved his vehicle to park in the gateway blocking it which impeded the Applicant's ability to leave and return to her home.
The Neighbour got out of his vehicle and stood at the driver's door with the driver's door open. The Applicant, who was now blocked asked the Neighbour to move his vehicle and according to the Applicant he responded with "why?" and at some point, used words which included calling the Applicant a "bitch".
The Applicant continued to walk towards the gateway to get to her home and past the Neighbour who was still standing at the open car door,
At this juncture, the account of the incident according to the police report differs from the evidence of the Applicant in that:
1. according to the police report, the physical altercation begun when the Applicant attempted to take the Neighbour's keys from his car; and
2. according to the Applicant, the physical altercation begun when the neighbour pushed the Applicant and the Applicant attempted to take the Neighbour's keys from his car in the context of being assaulted.
According to the Applicant,
1. when she attempted to walk past the Neighbour the Neighbour pushed the Applicant. The Applicant saw the keys were in the car and grabbed them as an act of defence. As she was reaching in, the Neighbour grabbed her and pushed her into the vehicle so she was on her stomach and stretched over the driver's seat, the Neighbour was on top of her and she felt physically vulnerable. According to the Applicant's Affidavit:
… [the Neighbour] then pushed my head into the seat and he grabbed my hand and bent my right thumb back causing immediate and immense pain. The only way I could stop [the Neighbour] from hurting me was to turn my head and bite the hand [the Neighbour] was using to hold my head into the seat.
[The Neighbour] said something like, "you bit me you bitch. You are gone for assault. I could rip your fuckin' head off. I then felt two strikes to my head and my ear get twisted. I then felt my hair get pulled and then [the Neighbour] yanked me by my hair and pulled me out of the ute and said something like, "look at this". [the Neighbour] then yanked me by my hair again and I fell on the ground. I then heard [my husband] say something like, "get off my wife". I saw that [my husband] and [the Neighbour] were on the ground wrestling. I tried to find my phone but couldn't find it and then I turned back to [my husband] and [the Neighbour] tried to get [the Neighbour] off [my husband]. I grabbed [the Neighbour]'s hand and tried to get him off [my husband]. I then felt an excruciating pain in my thumb, and I couldn't work out how to get [the Neighbour] off [my husband]. The only thing I could do was use my legs to kick [the Neighbour]. My kick landed between [the Neighbour]'s legs. This still didn't stop [the Neighbour] from holding down [my husband] and the only thing I could think of to have [the Neighbour] release his grip on [my husband] was to pour water on him from the small bottle of water I had in the ute. It was the water that eventually cooled the situation and allowed all of us to go our separate ways.
I attended upon a general practitioner after the incident and I was later diagnosed with chronic UCL fracture/ rupture with ligament retraction and a Stener Lesion. Conservative treatment was not working and I was not able to work on the farm because of the pain… On 18 August 2023, I had reconstructive surgery…
According to the police report:
1. the Applicant, when walking past the Neighbour's open car door, reached into the car to remove the Neighbour's car keys from the ignition. The Neighbour attempted to stop her and a physical struggle broke out. During the struggle the Neighbour had pulled the Applicant by her hair and the Applicant had bitten the Neighbour on his hand. The Neighbour hit the Applicant to the rear of the head. The vehicles horn was hit during the struggle which alerted the Applicant's husband who returned to his wife and joined the struggle. The Applicant's husband forced the Neighbour to the ground and punched him. The Applicant and her husband continued to assault the Neighbour with the Applicant bending the Neighbour's finger until she fractured it, kicked him in the genitals and poured a bottle of water over his head.
During the struggle, the Applicant's phone had ended up in the footwell of the passenger side of the Neighbour's vehicle.
The Applicant and her husband as well as the Neighbour both reported the incident to the police. The body worn footage of the conversation between the police and the Neighbour is in evidence as well as the body worn footage of the conversation between police and the Applicant and her husband.
Subsequently, the Applicant and her husband were each served with an Apprehended Personal Violence Order (PVO) on behalf of their Neighbour as well as the Neighbour on behalf of the Applicant. The Neighbour and the Applicant's husband were both charged. There is some ambiguity as to whether the Applicant was charged. The Applicant's evidence is that she was not charged but the evidence of the Respondent is that it was served on the Applicant's solicitors. In any case, all the charges as against all parties were withdrawn as well as the PVOs.
On 16 May 2023, the Applicant's licence was suspended and on 23 October 2023, the licence was revoked.
On 13 November 2023, the Applicant requested an internal review of the revocation decision. On 12 December 2023, the Respondent affirmed the revocation decision.
Prior to 28 December 2023, the Applicant and her family had placed logs alongside the carriageway to keep vehicles on the road and off their pastures. They had also erected speed signs.
On 28 December 2023, the logs were taken from the Applicant's property without her knowledge or consent. The Applicant has surveillance footage from security cameras of the events of 28 December 2023 and includes images:
1. of what appears to be the Neighbour with a chainsaw along with the two other vehicles including a truck on the carriageway.
2. footage of the vehicles full of logs on the same night that the logs along the carriageway were taken.
3. there is also a photograph of the men carrying a log along the road into the truck.
The stills from the surveillance camera are from a distance and the precise facial features cannot be clearly distinguished but the stature of two of the men is consistent with that of the two men in the photographs described at paragraph 29 below. The image of one of the men is consistent with the image of the Neighbour in the body worn footage of the subsequent interview.
On 2 January 2024, the Applicant reported that the Neighbour or people known to the Neighbour had stolen the logs placed alongside the carriageway and that this theft occurred on 28 December 2023. The Applicant also complained of vehicles conducting u-turns and driving onto her land and showed the police footage of it occurring which was of the vehicles involved in the removal of the logs. According to the police report, the police did not consider it theft because, according to the police report:
the logs were pieces of wood found at the base of trees with no monetary value. [The Applicant] insists on police charging the people with trespass, however that was shut down quickly… Police confirm this matter is of a civil nature, not criminal.
On the same day, being 2 January 2024 the Neighbour's daughter contacted the police and claimed that while she was leaving the campground and using the carriageway, the Applicant and her husband began yelling at them that they were trespassing and started to take photographs of their vehicles. The Neighbour's daughter also claimed that the Applicant and her husband had a firearm in the back of a buggy which she related admitted to not seeing physically seeing.
With respect to this incident, the Applicant admits taking photographs of the number plates because she recognised the vehicles in the surveillance footage as the same vehicles involved in the alleged trespass and theft that occurred on 28 December 2023 and wanted to ensure a record of their number plates. The Applicant states that she remained about 20 metres away in a buggy with her husband when taking the photographs. The vehicles stopped and the males that were in the car got out of the vehicles, walked some way away from their vehicles onto their land and started to yell aggressively at the Applicant stating that she was taking photos "illegally". They both yelled at the Applicant to "come here". The Applicant also gave evidence that at no time did anyone have a firearm as the firearms had been taken away by the police.
The Applicant relies on a video that her son took of the incident of 2 January 2024 and photographs. The photos show two males walking onto the Applicant's property. Given the distance away the Neighbour's daughter and her family were from the Applicant, it would also have been impossible for any of them to see into the buggy.
In making the reports of 2 January 2024, the police visited the Applicant and her husband. According to the police report, the Applicant and her husband were "extremely standoffish and aggressive with police, instantly accusing police of taking sides prior to speaking with them". That report states, in part:
[The Applicant] demanded Police charge [the Neighbour] with trespass, as she claimed he conducted a u-turn on the access road to his property, which caused his vehicle to partially pass of the track onto her property. Police explained this would not be occurring as due to the access road being extremely narrow and approximately 10 Kilometres in length, it was not unreasonable for [the Neighbour] to conduct a u-turn to turn around on the access road.
[The Applicant's husband] became highly aggressive and began yelling at Police, requiring [the Applicant] to direct him to be quiet.
[The Applicant] then reported a number of previous incidents between herself and [the Neighbour], which upon further enquiries it was revealed they had been reported to Police, she was just unhappy with the result.
Police provided advice regarding fencing, trail cameras and Council enquiries, which were all shut down by the [the Applicant and her husband] stating Police should be taking action. Police explained that thus far no criminal matters had been reported and that the ongoing disputes were civil in nature. Police then left the premises…
The body worn footage of the conversation between the police and the Applicant, and her husband are in evidence.
On 19 January 2024, the Applicant filed an application for administrative review of the decision of the Respondent.
As at 5 June 2024, the Neighbour had listed his property for sale which at that time was privately listed.
[3]
Applicable legislation
This is an application for administrative review pursuant to s 75(1)(c) of the Act.
The underlying principles of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The decision of Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 at [44] emphasises that strict controls on the possession and use of firearms are imposed for this reason. The underlying principles of the Act are outlined in section 3. Relevantly they are:
1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
2. to improve public safety:
1. by imposing strict controls on the possession and use of firearms, and
2. by promoting the safe and responsible storage and use of firearms.
The discretion provided in the legislation, should be exercised in a way which promotes the principles and objects of the Act: Cusumano v Commissioner of Police [2001] NSWADT 50.
As submitted by the Respondent, the only issue that appears to arise in these proceedings is whether it is in the public interest for the Applicant to hold a firearms licence or more precisely, whether it is not in the public interest for the Applicant to continue to hold a licence. In this respect, section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed by the regulations. Clause 20 provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
[4]
Tribunal review
The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all material first considered, together with any further relevant material to either confirm the original decision, vary it or set it aside and substitute another.
Section 63(1) of the ADR Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the [Commissioner's] decision is correct: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act).
[5]
Submissions and evidence
In summary, the Applicant relied on the following submissions:
1. The evidence supports that the Applicant is a person of good character in that:
1. The Applicant has never been convicted of a criminal offence in respect of the incident or otherwise.
2. The Applicant has no record of traffic matters.
3. The Applicant has not breached the Act or the Regulations and there is no evidence that she has misused firearms in any way.
4. There is no evidence of anti-social behaviour such as substance abuse.
1. With respect to the events in March 2023, reliance was placed on Jobson v Commissioner of Police (NSW) [2023] NSWCATAD 143 for the proposition that violence and disputes with neighbours does not of itself make it not in the public interest for a person to have a firearms licence. The following contentions were also made:
1. It was an isolated incident and is not a part of a pattern of ongoing behaviour.
2. The acts of the Neighbour and specifically undertaking works on the Applicant's land without consent was extremely provocative.
3. The Applicants' actions need to be viewed in the context of the Applicant being assaulted in a "brutal attack" and then, to protect her husband who was then attacked.
4. The fact that the police considered the Applicant a person in need to protection from the Neighbour supports these contentions as to context.
5. The Applicant cooperated with police which supports her good character.
1. Even if these submissions were not accepted, the evidence:
1. does not support that any risk associated with the neighbour in on-going or could escalate given: first - the Neighbour was never resident at the property but lived interstate; and secondly, the property is being sold by the Neighbour.
2. supports that despite the dispute with the Neighbour, there was never any actual or threatened use of a firearm.
1. With respect to the incident on 7 November 2022, the Applicant was not involved.
2. With respect to the reports made on 2 January 2024, the evidence, and specifically the body worn footage, does not support that the Applicant was aggressive or confrontational nor that the Applicant's husband was aggressive. As stated by the Applicant:
It became clear to me the police didn't have any understanding of easements and I was not able to explain it to them in a way they would understand it … I was upset as the entire situation felt as though I had to defend myself against the police and the reason they were at my home but at the same time I wanted their help on how to navigate these strangers coming through our property when I never gave permission and [the Neighbour's] actions of stealing our logs.
1. With respect to the Respondent's contention, that the Applicant has failed to demonstrate any "reflection" on these events, the Applicant denies that her actions require "reflection" as she has a legitimate grievance with her Neighbour and has acted appropriately noting that according to the Applicant, she has been a victim of sexual violence.
Lastly with respect to the report of domestic violence from 3 September 2021, the Applicant's evidence is that it was an isolated incident caused by exceptional circumstances being the need to home school her children during the COVID lock-down while maintaining her marriage and the farm.
In terms of evidence, the Applicant relied upon the following documentary evidence in addition to oral submissions and oral evidence:
1. Application for administrative review marked "A1".
2. Outline of submissions marked "A2".
3. Affidavit of the Applicant dated 3 April 2024 marked "A3" with annexures.
4. Affidavit of the Applicant dated 5 June 2023 marked "A4" with annexures.
5. Outline of submissions in reply marked "A5".
In summary, the Respondent relied on the following submissions:
1. The dispute with the neighbour is continuing and unresolved and has escalated to violence and has the potential to become volatile again. In this respect, the Respondent relies upon the number of attendances on the Applicant's property including the recent attendance in January 2024.
2. The Applicant's "lack of reflection" regarding her involvement in the dispute with the Neighbour.
3. The Applicant's broader environment and specifically her relationship with her husband, her husband's non-compliance with the firearms legislation as well as the history of domestic violence. Viewed altogether, the Tribunal should find that there is a clear picture of aggression and violence displayed by the Applicant's husband and, as such, there is a clear concern regarding public safety if a firearm is re-introduced into the environment.
In terms of evidence, the Respondent relied upon the following documentary evidence in addition to oral submissions and the cross-examination of the Applicant:
1. Outline of submissions marked "R1".
2. Statement of Senior Constable Nicholas Currie dated 27 April 2024 with annexures marked "R2".
3. Statement of Constable Andrew Rae dated 25 April 2024 2024 with annexures marked "R3".
4. Section 58 bundle marked "R4".
5. Supplementary document for the section 58 bundle marked "R5".
With respect to the footage that either party relied upon, the footage was played at the hearing.
[6]
Consideration
Dealing with the dispute with the Neighbour, I do not accept that because the Applicant is involved in a dispute with a neighbour that has become violent, that this leads to a finding that issuing the Applicant with a firearms licence is not in the public interest in that it is inconsistent with public protection, public safety or public confidence in the administration of the licensing system: Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16 at [33]. Whether or not the existence of that dispute and the actions of the Applicant with respect of that dispute leads to that finding depends upon the circumstances of that dispute. With respect to these circumstances:
1. First, I accept that the actions of the Neighbour towards the Applicant and her husband have been extremely provocative. This included conducting earthworks on the Applicant's property without the express consent of the Applicant. There is also evidence that the Applicant is breaching the terms of his Council consent (consistent with the complaints of the Applicant) in that the right of carriageway limits access to 30 people and in the interview between the Neighbour and the police, he references expecting hundreds of campers in the holiday period. While I do not accept this provocation justifies any assault, I do accept that it was reasonable for the Applicant to take steps to stop the earthworks from taking place and reasonable to have concerns and raise issues with respect to the Neighbour's use of the carriageway.
2. Secondly, the evidence does not satisfy me that the violence that occurred in March 2023 was provoked or contributed to by the Applicant. In this respect, the Applicant's evidence is that the steps that she took were provoked by the Neighbour and in self-defence. The Applicant has sworn two affidavits and was subjected to cross-examination. There is no direct evidence of the counter-factual and no opportunity to challenge the allegations made against the Applicant with such evidence being limited to police reports which properly characterised is second-hand hearsay and as such, I give it little weight: Children's Guardian v BRL [2016] NSWSC 1206. In those circumstances, I find that while the disagreement with the Neighbour was not exceptional in that it was a dispute that was on-going (at least at that time), the actions of the Applicant were exceptional and a reaction to an isolated incident. I reject that the incident gives rise to a finding that issuing the Applicant with a firearms licence poses a risk to the public or otherwise not in the public interest.
3. Thirdly, there is no evidence of any actual or threatened use of a firearm in relation to the dispute with the Neighbour and in respect of the allegation that the dispute is subsisting and will continue, such a submission sits uneasily with the fact that the Neighbour's property was placed on the property market for sale as at the time of the hearing.
4. Fourthly, the evidence does not provide any alternate basis to conclude that the Applicant is violent, disregarding of legislative regimes designed to protect the public, or that otherwise the issuing of a firearms licence is inconsistent with the public interest. In this respect:
1. The Applicant has never been convicted of a criminal offence;
2. The Applicant has no record of traffic matters;
3. The Applicant is not subject to any apprehended violence of any kind;
4. The Applicant has not been the subject of any finding, in any court or tribunal, that she has failed to comply with the firearms legislation; and
5. There are no allegations that the Applicant has failed to comply with the Act.
6. The incident of 29 September 2022 involving an argument about signage with the Neighbour resulting in all parties walking away.
1. With respect to an alternate basis to allege that the Applicant (and/or her husband) is aggressive or confrontational or has come to the adverse attention of the police on several occasions:
1. First, with reference to the evidence of Constable Rae, I reject that the Applicant's conduct (or her husband's) is consistent with Constable Rae's descriptions having viewed the body worn footage. Rather, the Applicant's words and demeanour are consistent with someone disagreeing with and becoming frustrated with:
1. the continued assertion of the police officers that the issues related to the easement were Council issues.
2. that trespass was not a criminal offence.
3. that there was no evidence to charge [the Neighbour] with theft or trespass.
4. that the Neighbour's need to drive onto the Applicant's property to conduct u-turns in his opinion was reasonable.
5. the police officers' suggestion of building a fence on either side of the carriageway (noting that the carriageway is on their property and cattle would not be able to access both sides).
1. In respect of the police report made by the Neighbour's daughter on 2 January 2024 - the neighbour's daughter reported to the police that the Applicant and her husband had a firearm on the backseat of their buggy which she later resiled. Given this inconsistency and the fact there is no direct evidence from the Neighbour's daughter in any case, I place no weight on the account given by the Neighbour's daughter as recorded in the police reports.
2. With respect to the incident on 7 November 2022, the Applicant was not involved.
1. That leaves the association with her husband and the allegation that a firearm in the context of that relationship is not in the public interest. In this respect, the evidence does not satisfy me that there is an ongoing risk of violence from the Applicant's husband. The events of September 2021 were the first instance of violence in the relationship in 17 years. There is no evidence of coercive control as was the case in Housea v Commissioner of Police, NSW Police Force [2014] NSWCATAD 54. I find that what occurred on 4 September 2021 was an isolated incident of violence. I accept the evidence of the Applicant in this regard:
I wish to inform the Tribunal that domestic violence does not have a theme within … my marriage. The bickering and fighting that took place in September 2021 is not indicative of our marriage or family life. Both [my husband] and I inform the police honestly that the September 2021 incident 'was not the first' as [my husband] and I had fought about 17 years prior, as at September 2021, or about 19 years ago now. However, neither of us had injuries or called the police it was just a verbal fight that led to us both becoming frustrated with a very young family. The incident in September 2021 was after 2.5 years of living together with five children and no break from the normal pressures due to home schooling and lack of access to essential services including the internet to homeschool as we do not have access to fast internet speeds etc. The fighting that took place was 'situational' and has not occurred since. [My husband] sustained a brain injury about 35 or so years ago. There is no doubt that both [my husband] and I had to adjust to what 'the rest of our lives" was going to be like. I can't say we won't disagree and argue but we certainly don't hit or punch one another. I am very strong willed and certainly not a wilting flower and can put in 15 hours a day working on the [farm] when I need to. I have a fear of cities and do not necessarily understand the way "city people" think, work or make decisions. [My husband] and I do not engage in Domestic Violence and we live a quiet working family life on the farm.
Since [my husband] had his firearms licence disqualified, I have hid the gun keys and do not share the whereabouts of the gun safe keys with anyone. I have no criminal history. I live in a remote/rural area of New South Wales and never travel to the city and try not to go into town. I love my rural life with my husband and my family and I have a strong need for a firearms licence to control wild animals and vermin from killing and harming our stock. I have always attended upon the police if and when I need advice or help and shall continue to do so (despite their annoyance of me doing so). I respectfully seek the Tribunal to provide me with the privilege of having a firearms licence so I can continue in be a responsible firearms licence holder for many more years.
I therefore reject the Respondent's contentions related to the public interest. In all the circumstances, the correct and preferable decision is to set aside the decision the subject of review and I make the orders below.
[7]
Orders
I make the following order:
1. The Respondent's decision to revoke the Applicant's firearms licence is set aside and the licence is reinstated.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 09 October 2024