Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bilanenko v Commissioner of Police [2022] NSWCATAD 76
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Bilanenko v Commissioner of Police [2022] NSWCATAD 76Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Hassall v Commissioner of Police [2022] NSWCATAD 47
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATA 16
Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (5 paragraphs)
[1]
The applicant's supporting documents
The applicant tendered three character references, one dated 4 October 2022 from Mr Peter Schouten AM FRSN, who states that he has known the applicant for 8 years and throughout that time has found him to be a thoughtful, diligent and caring person. As an SES unit commander, RFS unit president and paramedic, he deals with people, trauma and emergency situations on a regular basis. He has the ability to take command and render assistance capably and with empathy. In his previous role as president of the Bobin School of Arts Hall, Mr Schouten would frequently call for volunteers to undertake maintenance jobs necessary for the upkeep of the 100 year-old building. Gary was always the first to put his hand up and also showed initiative by identifying tasks in need of attention, often undertaking those jobs on his own.
Gary has a strong appreciation of the natural world and it is disheartening for him to witness the environmental destruction wrought by feral pigs on his property. He is particularly distressed by the rooting up of native pasture while searching for tubers of native plants, including endangered terrestrial orchids. As a resident of the Manning Valley for over 20 years, Mr Schouten has a strong appreciation of their unique flora and fauna and wholeheartedly supports the reinstatement of Gary's firearms licence so that he can undertake a culling program to bring these destructive feral pigs under control.
Mr Mark O'Brien wrote on 8 October 2022, having read the internal review decision and the notice of refusal, that he had previously been aware of most of the incidents mentioned and believed the applicant's version of them to be the truth. He finds the applicant to be a man of gentle and even temperament and of excellent character. He is a vital pillar within the Bobin Village community, as was evident during and after the November 2019 fires that destroyed a third of the homes there. As an RFS volunteer, he was instrumental in saving their local community hall, and also saving lives by stopping residents from mistakenly fleeing into the fire front. His own residence in Bobin was destroyed, yet despite that he was able to provide expert advice on how to equip and operate their local hall as an emergency and evacuation centre. He volunteered his time for weeks on end in the aftermath of the fires.
In addition, Mr O'Brien had observed the applicant to be a very safety and security conscious individual, no doubt due to his experiences and training in his occupation as a paramedic. Mr O'Brien knows the applicant has applied to renew his licence in order to control the feral animals on his rural property at Mount George and knows of no grounds to justify withholding it.
Ms Lyndal Adams's reference dated 6 October 2022 states that she has been a nurse for 47 years, during which time she has held a position in mental health for the past 25 years and also serves as deputy unit commander of the SES Wingham unit. She has known the applicant for approximately 25 years personally and professionally and has always found him to be a responsible person and of good character. His commitment to public safety in his volunteering with SES and his work commitments as a New South Wales paramedic has always been, in her opinion, a very safe, responsible and reliable person.
Ms Adams had read the internal review decision and the notice of decision and sees no issue in this statement pertaining to the applicant. She therefore has no hesitation in supporting his appeal to hold a firearms licence, as he lives in a rural area and is in need to control feral vermin on his property.
The applicant also tendered an impressive collection of awards and certificates for ambulance and emergency work, including four service medals and two medallions, four citations for his ambulance, SES and Rural Fire Service work during the 2019 - 2020 bushfire outbreaks, a Parliamentary certificate of recognition for his contribution at that time, a 35 - year SES long service and an SES life membership certificates, at least eight SES and ambulance service training endorsements, two Civil Aviation Authority qualification certificates, a certificate of appointment as an assistant Scout leader and a number of supporting photographs.
[2]
Evaluation
From his character references and supporting documents, it is clear that the applicant is a well-regarded member of the Wingham community who has made, and is still making, a highly meritorious contribution to public safety and welfare in his area, through SES, the Ambulance Service, the Rural Fire Service, the Scout movement and in other capacities.
The applicant is a man aged 59 who has never been charged with a criminal offence and does not appear even to have any record of traffic violations. He has no recorded contraventions of firearms legislation and no reports of unsafe or negligent firearms use or storage. He has an undisputed need to possess and use firearms in order to control the depredations of feral pests, notably feral pigs, which are a continuing problem in the area.
He has never had a record of substance abuse, nor has he any history of mental disorder or of psychiatric treatment.
Despite many good qualities possessed by a person, however, those qualities can be outweighed by a simple adverse incident if it is of sufficient weight and seriousness: Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781. Here it is not a case of a single adverse incident, but of the similar reported instances of aggressive and intimidating behaviour detailed above, some of them very serious, such as event report E111807994. They have been recorded since at least 2006 and as recently as 2021 and are a matter of serious concern.
Along with that history is his attitude of flat denial of the COPS event reports or the blanket assertion that he was acting in self-defence, all with little supporting evidence, although it does appear that his relationship with Jennifer was a volatile one, that she could act irrationally without regard to safety and that on occasion she instigated and aggravated acts of violence. (As to allegations of domestic violence by women, see Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426, [136]). In some instances, the applicant does not deny the allegations by Jennifer and others and offers no explanation, as was noted by McCloskey LCM in the AVO proceedings. Also, in that case he claimed he could not recall whether or not he had punched his de facto partner, a claim that the magistrate found lacking in credibility.
Quite apart from the lack of expressed remorse or contrition, which in any event can be simulated, there is minimal acceptance of any responsibility for the incidents or acknowledgement of his role in them, but instead the attempt to direct responsibility to others or downplay the seriousness of the events. There is no evidence that he has ever sought professional assistance in anger management or stress management, although police advised him to seek counselling as early as 2006 (event E111807994, 29 June 2006, part exhibit R3).
[3]
The public interest
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.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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].
[4]
Conclusion
Considerations such as biosecurity cannot, however, outweigh the need to minimize risks to public safety: Kammoun v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 273, [97]. For the reasons given above, including in relation to fitness and propriety, I do not think the currently available evidence permits the tribunal to find that issuing a firearms licence to the applicant would involve no real or appreciable risk to public safety as understood in Webb.
The applicant's propensity to lose control in stressful situations or when provoked is of concern and there is no evidence of any professional assistance in dealing with it, although he was advised to seek counselling as long ago as 2006. I therefore find that it would not at present be in the public interest for the applicant to be issued with a licence. I have already found that the applicant is not at present a fit and proper person to be the holder of a firearms licence. The decision under review should be affirmed.
[5]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 December 2022
Parties
Applicant/Plaintiff:
Greene
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
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 refusal of a licence or permit: s 75(1)(a). 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.
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides 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".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
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" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
Fitness and propriety to hold a firearms licence are to be established as a positive conclusion based on objective evidence. Even in the absence of any criminal charges, an applicant may not be a fit and proper person to hold firearms in light of a history of repeated aggressive behaviour, lack of insight into his actions and attempts to minimize his responsibilities: Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [63] - [68]. In the present case, consideration of the whole of the evidence leads to the conclusion that in light of his long-standing history of aggressive and intimidating behaviour the applicant is not at present a fit and proper person to possess and use firearms without risk to public safety, and I so find.
The applicant submitted that his record of service to the community did not align with the allegations by his ex-partner. Nevertheless, his record over many years of losing control when stressed or provoked (and he was provoked in his relationship with Jennifer and his confrontation with Mr Clint) creates a possibility that an angry confrontation in the future could spiral out of control. In the context of firearms licensing, that represents a potential risk to the public that is not theoretical or fanciful and must be taken into account.
The applicant operates a rural property and expresses a need to have firearms in order to control ferals, especially feral pigs which are a major problem in the area, and other vermin. His character references corroborate that need and support the applicant's licence renewal on that basis, among others. Indeed, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment, of primary industry and biosecurity generally. There is, however, no evidence about how he has been able to deal with the problem of feral pigs and other vermin in the 12 years he has been without his licence.
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22]. In determining whether there is a risk to public safety, the tribunal is to consider an applicant's family relationships: Hassall v Commissioner of Police [2022] NSWCATAD 47, [81].
The tribunal takes into account matters indicating criminal conduct, whether or not the conduct has resulted in a conviction. It is the conduct, rather than the legal outcome, that is to be considered: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.
The respondent relies on a number of incidents involving the applicant in support of its proposition that the refusal decision should be upheld. It is argued that the applicant has a demonstrated history of alleged aggressive behaviour for which he has come to police attention on at least five occasions.
The first arose on 29 June 2006 (event report E111807994, part exhibit R3). The applicant's then partner, Jennifer *****, told police that for the last 18 months she had been experiencing domestic violence from the applicant, who was known to go into rages, the incidence of which had increased in the last two months. The applicant had previously threatened her about notifying police, saying that he would lose his job as an ambulance officer at Taree all if she did. She was thus reluctant to call police.
On the day in question the applicant and Jennifer had an argument in the kitchen concerning the evening meal and his treatment of Jennifer. When she placed a plate in the sink, she was slapped across the back of the head approximately four times extremely hard, knocking her off her feet. She then turned around and raised her hand to protect herself, it whereupon the applicant pushed her back against the cupboard. She was able to push him away and said that she intended to call the police. The applicant then choked her at the back door.
When she went to collect her child, who was crying at the time, she heard the applicant on the telephone to his mother saying, "It's got physical again". After a number of other telephone calls the argument continued and the applicant placed his right thumb under her chin, forcing her head back, and drove his thumb up under the chin into the throat, saying "If I stay here I will kill you".
There followed other exchanges, including the applicant throwing the victim out of the door and locking it. When making her statement to police, Jennifer was extremely distressed and constantly crying. "She had difficulty with her cognitive thoughts with the sequence of the incident", the report stated. "It is for this reason that at this time no charges are being laid". An interim AVO was granted.
The same report related that two or three weeks previously, in the course of a dispute, the applicant slapped the victim on the face, causing bruising to her nose and lip, and a split lip. There had been further incidents of domestic violence and assaults that had occurred but the victim was unable to give further particulars of dates. Police confiscated the applicant's firearms licence and took possession of his firearms. They apprised the applicant of available counselling services.
Then on 26 June 2007, police were informed of a domestic incident involving the applicant and his by then former partner, Jennifer ***** (event report E 31065651, exhibit R1, pp 10 - 11). The event report states that the applicant and Jennifer were in a de facto relationship for 3½ years which had since ended, with the parties now living separately. There was one child of the relationship, then aged 30 months.
Jennifer had been experiencing domestic violence from the applicant throughout the relationship and she was extremely fearful of his actions. She had been reluctant to inform police as he had threatened her in the past and she was fearful of what he would do if police became involved. The incident began with a telephone call that developed into an argument over custody arrangements. During the argument the applicant had said, "You don't know violence yet". Jennifer telephoned police, who found her to be extremely shaken, distressed and constantly crying. An AVO was applied for.
At the AVO hearing on 24 September 2007, McCosker LCM relied on the evidence given by Jennifer, who attested to further instances of domestic violence, including one in which the applicant, while driving towards Eden or Nowra, had left the road and aimed the car (conveying himself, Jennifer and his son) at a tree. His Honour noted that the applicant remained silent about the matter and did not deny the incident. The magistrate also accepted her evidence that he had driven his thumb under her neck and said "If I don't leave I'm going to kill you" and that he had previously mentioned that she could have an accident and no-one would ever know (id., 56).
The magistrate also gave weight to a comment made by the applicant in his evidence in chief in which he had said "I can't recall punching her directly". "Now I would have thought", his Honour observed, "anybody who punches another person would have that issue and that matter indelibly printed on their memory yet Mr Greene says, 'I can't recall punching her directly'. He says, 'I've restrained her, I've pushed her, all in self-defence, but I can't recall punching her'. Now I would have thought a strenuous denial of punching a person would be 'It's never happened, I've not punched her'. In the circumstances I find that portion of his evidence to be less than persuasive" (id. 74).
On 24 November 2014, police were called to the residence of Ms Carole *****, who had been in an on and off relationship with the applicant for about 10 years, as the applicant had started to become argumentative and rude towards her. She asked him to leave the house but he became more argumentative and threw his glass cup on the ground, damaging it. She again asked him to leave, but he refused and Carole telephoned the police. While she was so doing, the applicant left the residence while she was on the telephone. A witness who was present at the time corroborated that version of events (id., 15).
Event report E 68018264, 14 May 2018 (id., 17 - 18) records an incident where the applicant attended Jennifer's address unannounced to collect his son for a Scout function. The son refused to accompany him and the son's half-sister attended the location. A conversation ensued outside the address between the applicant, the son and the half-sister. The son entered the half-sister's vehicle, whereupon the applicant followed and attempted to open the door of the car. The son and half-sister drove to the local police station. Afterwards, the son reported to Jennifer that he did not want to see the applicant until he felt comfortable again.
The fight with Mr Clinch took place on 25 March 2021 when both parties had been driving along Wingham Road, Wingham, and the applicant was travelling at a speed below the posted speed limit. Mr Clinch was following and was becoming frustrated about it, being unable to overtake. As the applicant turned in to the Wingham SES headquarters, Mr Clinch drove past and yelled abuse at him. The applicant then followed Mr Clinch to the DC Maintenance workshop. He got out of his vehicle and walked over to the driver's door of the other vehicle and a verbal altercation started in relation to the traffic incident.
At that point a witness, Ms Lyndal Adams, also of SES, arrived as Mr Clinch was opening his door against the applicant but did not see how the fight started. After moving to an unobstructed vantage point, she saw the applicant hunched over Mr Clinch, who was on his back striking the applicant in the face. The fight ended with Mr Clinch on his back and the applicant on top wrestling him. Witnesses separated the parties who continued to yell at each other. One of the witnesses said the applicant had stated "I'm SES, I can do anything. Call the Police. Call the Ambulance". He was subsequently taken to hospital.
In her statement dated 19 April 2021, Ms Adams described the scene in these terms: "I was getting out of my car I saw Gary standing at the driver side door of the second Ute. I then saw the top of the driver's door of that vehicle open and hit Gary in the chest and he was pushed backwards with the door. I did not see what happened next because I was still getting out of my car and when I finally got out I could see Gary and another man struggling on the ground. They were punching each other. I was telling them to cut it out and two men from the business were there and they pulled them apart…."
"He [the applicant] did say that all he was trying to do was find out what the guys problem was swearing at him and carrying on and that was why he followed him up the road, to see if he had a problem with him or the SES. Emotions were running high in the community at that time and they felt they had not been given sufficient notice. It was also emotional for us as well because we had been operational for several days with flood rescues and Wingham had actually been cut off. This may have been only the second day traffic was able to get in and out" (exhibit R1, pp 51 - 52).
There was no dispute about the events leading up to the altercation, though as to the clash itself the applicant claimed that Mr Clinch threw the first punch and that he had struck back in self-defence, denying having been the aggressive party. In the absence of further evidence, police decided to take no further action. Both parties required medical treatment.
Senior Constable Abbott interviewed Mr Clinch at the scene. The latter's version of events was that he had been driving to his place of work to obtain a larger vehicle to salvage his personal items (as he had lost most of his property in the floods). He said the applicant had followed him to his place of work, screaming at him, telling him to get out of the car and grabbing him by the collar.
The applicant said that he had spoken to Mr Clinch from approximately one car door length away and that Mr Clinch had abruptly opened his car door, lurched towards him and had thrown a punch connecting with the applicant's forehead. He said that he had acted in self-defence and stated that Mr Clinch "got some blows too". S/C Abbott noted that "My impression of the fight between the Applicant and Mr Clinch was that they both lost control during a time of heightened stress. It was unclear who the initial aggressor was, but injuries of both parties indicated they had clearly engaged in a physical confrontation" (exhibit R2, para 13).
At the hearing the applicant testified that he had followed Mr Clinch's vehicle in order to ask him whether his problem was with SES or with himself. Tempers in the area had frayed because of the effects of the floods. Emergency services had received some criticism over their handling of the inundation, including for allegedly not having given residents sufficient notice.
According to the applicant's account, he had been engaged in a kind of customer service mission on behalf of SES. Be that as it may, pursuing a vehicle down the highway with a view to confronting the driver would seem a rather provocative and intimidating way to go about it.
A hypothesis of an aggressive and angry reaction to an affront seems more likely in the circumstances, given the stresses the local people had been experiencing and the long hours SES personnel had been working. His ill-advised boast that "I'm SES, I can do anything" supports that explanation. In the submissions to the internal review, his former legal representatives submitted that "Mr Greene was provoked by a driver who (in his opinion) had an issue with SES" (exhibit R1, p 37).
At the same time, I think it improbable that the applicant had initiated the physical violence. He was on duty in SES uniform and driving a marked SES vehicle and had a good work record in that capacity and others relating to public safety. Notwithstanding his angry outburst that he was SES and could do anything, it seems more probable that his intention had been to give Mr Clinch a verbal dressing-down rather than initiating violence. Ms Adams saw Mr Clinch open the door of his utility into the applicant's chest, pushing him backwards. His reaction had been aggressive, but that does not necessarily mean that he struck the first blow. Opening a vehicle door into his chest, pushing him backwards, as Ms Adams observed, could itself be regarded as the first blow.
But equally, the applicant made no attempt to de-escalate the confrontation and indeed had to be pulled off his injured opponent by third parties, still shouting abuse at him. One might think that an experienced senior emergency services officer such as the applicant might be expected to use his skills and experience to calm the situation. His bellicose manner on that occasion is, however, consistent with the history of aggressive behaviour depicted by the accounts outlined above. In multiple instances he does not explain his involvement in or responsibility for those incidents and simply denies them or describes them as self-defence.
McCloskey LCM referred to the incident described by Jennifer in which the applicant had driven his vehicle off the road at 100 km/h while conveying her and their child and aimed it directly at a tree, swerving back onto the road after she screamed "Our baby's in the car" (exhibit R1, p 55): "Nothing from the defence about that", his Honour continued, "no denial in relation to that particular matter, it remained silent. Yet it was a very forcefully put issue for Ms ***** and indeed was a very emotive issue for her" (exhibit R1, p 74). Nor had he denied punching and slapping Jennifer on a number of occasions and knocking her to the ground (ibid.).
Jennifer admitted, however, that on two occasions she had attempted to jump out of a moving vehicle being driven by the applicant (id., 59 - 60) and that she had bitten his arms and thrown his clothes and private papers out, which she said was in self-defence. She also denied his allegation that she had attempted to strangle him with a telephone cord and had tried to hit him over the head with a hobby anvil (id., 61 - 62, 67), but did not deny throwing glass plates at him (id., 66). She did not deny threatening to report him to the police with the intention of destroying his career.
The applicant refers to his compliance with his 2-year AVO as evidence of his meeting his responsibilities, but downplays the underlying events that caused the AVO to be imposed. In relation to Jennifer's claim that he had said "You don't know what violence is", he responded that he was answering an accusation that he had a violent past, by saying "I do not have a violent past and never have, I said to her 'You do not know what violence means, you are the violent one Jenny and you instigate the violence''' (exhibit R1, p 71).
That explanation was offered at the AVO hearing on 24 September 2007 where at one point in evidence in chief he said, "I can't recall punching her directly" (ibid.). His Honour's expression of disbelief in relation to that remark has been mentioned above and appoint necessarily casts doubt on his other explanations for his conduct.