This is an application by Mr Richard Hassall ("the Applicant") seeking review of a decision made by the Commissioner of Police, NSW Police Force ("the Respondent" or "the Commissioner") under the Firearms Act 1996 ("the Firearms Act") to revoke his category AB firearms licence. The decision to revoke the licence was made on the basis that it was not in the public interest for him to hold a firearms licence. The Respondent's decision was based on information which indicated that the Applicant had engaged in abusive behaviour towards his former partner. In these reasons I will refer to the Applicant's former partner as Ms A.
[2]
Background
The background was discussed in Hassall v Commissioner of Police [2021] NSWCATAD 101 at paragraphs [2] - [4]:
2 On 25 February 2021, the applicant Mr Richard Hassall applied to this tribunal for review of a decision by an adjudication officer of the respondent made on 20 October 2020 to revoke his category AB firearms licence No. 411112197 on the ground that the respondent had health concerns regarding his ability to possess a firearms licence. Information held by the police indicated that the applicant engaged in abusive behaviour towards his partner, and those concerns raised doubts regarding his ability to possess firearms safely.
3 He had been the subject of a police application for an apprehended domestic violence order (ADVO), his partner at the time, Ms ****, being the person in need of protection. The applicant was not charged with any criminal offence and Ms ****made no formal complaint against him and she informed police when the application was to be defended that she did not wish to provide a statement to police, had no fears in relation to the applicant and did not seek an ADVO for her protection.
4 Mr Hassall had applied for an internal review of the revocation decision on 4 November 2020, adding a request for further and better particulars and an extension of time. As the applicant was not notified of the outcome of the internal review decision within 21 days, the internal review was taken to have been finalized on or about 22 December 2020 (see ADR Act, s 53(9)(b)). Accordingly, there is no internal review decision before the tribunal.
The Applicant and Ms A are still business partners and speak most days of the week relating to the business.
The Commissioner relies on a number of event records from its Computerised Operations Policing System ("COPS") - a centralised database containing all day-to-day operating information for police investigations. These records show the various incidents involving the Applicant that have come to the attention of the Commissioner. The Respondent has summarised a number of incidents into a chronology which he considers indicates that:
1. the Applicant is the subject of allegations that he has committed domestic violence against his ex-partner;
2. the Applicant has been implicated in other incidents of violence, where his level of intoxication has been noted by Police;
3. the Applicant is no longer a fit and proper person to hold a firearms licence;
4. the Applicant's repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety;
5. the Applicant has failed to comply with Participation Requirements under Part 10 of the Firearms Regulation 2017 ("the Regulation"); and
6. it is not in the public interest for the Applicant to continue to hold a firearms licence.
The Applicant disputes the Respondent's understanding of many of the incidents contained in the COPS events and the inference that have been drawn in regard to those incidents.
[3]
Issue for determination
The issues for determination are whether it is contrary to the public interest for the Applicant to hold a firearms licence and whether the Applicant is no longer a fit and proper person to hold a firearms licence.
[4]
Applicable legislation
Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. The Tribunal has jurisdiction in regard to a number of firearms licensing issues conferred on the Tribunal by section 75 of the Firearms Act 1996 ("the Act").
This application is made under section 75 of the Act and the ADR Act.
The Act sets up a scheme to license people to possess and use firearms. One of the underlying principles of that Act is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.
The Tribunal's jurisdiction includes review of decisions by the Commissioner of Police to refuse to issue a licence or permit; to revoke a licence or permit and to impose a condition on a licence or permit.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation. The principles and objects of the Act confirm that possession and use of firearms is a privilege that is conditional on public safety. Section 3(1) provides:
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
Section 11 of the Act provides for the issuing of licences. Section 11(3) provides:
(3) A licence must not be issued unless:
(a) 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, and
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
...
(5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that:
(a) the person is a risk to public safety, and
(b) the issuing of the licence would be contrary to the public interest.
...
The Tribunal's function in relation to applications before it is set out in section 63 of the ADR Act:
63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The issue in the present case is whether the correct and preferable decision is to affirm, vary or set aside the Commissioner's decision and, specifically, whether the Applicant is a fit and proper person to hold a licence under the Act and whether or not it is contrary to the public interest for him to do so.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23].
The discretion must be exercised keeping in mind the activities which are authorised by a licence/authority/certificate etc. under the Act. Accordingly, the objects and purposes of the Act are relevant. The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to him.
[5]
Fit and proper person
The Act places an emphasis on licensees being fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence under the Act on numerous occasions.
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].
In the context of the 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].
The issue is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:
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, 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.
They went on to say at 388:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):
"The expression fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
[6]
The Public Interest
The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:
"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
The 'public interest' allows a consideration of issues going beyond the character of the Applicant to be taken into account. These 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, NSW Police Force [2013] NSWADTAP 16.
"Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
[7]
Confidential Sessions
The Commissioner provided information to the Tribunal on a confidential basis and this was considered in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
The Applicant has been provided with some material in a redacted form. An unredacted copy of that material has been provided to the Tribunal on a confidential basis.
[8]
The material before the Tribunal
The Applicant relies on his own evidence. He has provided statements and attended the hearing, gave evidence and was cross-examined. He also relies on a statement provided by Ms A and a number of character references and other material in support of his application. Mr Mainstone made written and oral submissions in support of the application.
The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. Included in this material are a number of records held in the Respondent's Computerised Operations Policing System ("COPS") database showing dealings between police and the Applicant.
In addition, the Respondent relies on the evidence of Senior Constable Kelly Swords. Senior Constable Swords is a domestic violence officer at Sutherland Police Station. Her statement explains that the confidential material comprises records and documents held by the police. The Respondent relies on that material which has not been provided to the Applicant.
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The Respondent has provided both open and confidential submissions.
Following the hearing of this matter, Mr Mainstone requested that the matter be re-listed for directions to deal with correspondence he had received from Ms A, after the hearing.
Mr Mainstone subsequently filed a copy of a series of texts that he had received from Ms A and a further statement of the Applicant.
[9]
The Respondent's case
The Respondent relies on a number of records held in the COPS database. The Respondent has provided a chronology of events leading up to the decision to revoke the Applicant's firearms licence. The chronology indicates:
On 22 January 1995, the Applicant was charged with two counts of assault and an offence of malicious damage, after he assaulted a person in a park in Engadine.
On 31 January 1995, the Applicant attended Engadine Police Station voluntarily and took part in a recorded interview, during which he admitted the assaults and claimed to not remember the malicious damage offence.
On 8 June 1995, the offences of assault and malicious damage were found proved but dismissed.
On 1 December 2004, the Applicant was observed by Police in his motor vehicle, travelling at a speed well in excess of the 60km/h speed limit. He was subsequently stopped and subjected to a roadside breath test, returning a positive result. The Applicant was arrested and conveyed to Sutherland Police Station, where he undertook a breath analysis test, and returned a reading of 0.065 grams of alcohol per 100 millilitres of blood. He was subsequently charged and convicted of an offence of "drive with low range PCA" and disqualified from driving for 3 months.
On 2 June 2012, the Applicant was involved in a verbal and physical altercation with persons in Surf Road, Cronulla. Police attended the location and found that the parties had ceased fighting, with one person's nose bleeding and the Applicant with scratches on his neck. Due to conflicting accounts, Police were unable to ascertain who the aggressor was, with all parties claiming self-defence.
On 29 March 2013, the Applicant made a report to Police alleging that his then partner had made a gesture towards him that she was going to cut his throat. It was also noted that during the day they had gone out for lunch, where they had consumed a large amount of alcohol. The Applicant informed Police that he wanted her out of the house, but eventually agreed to her sleeping in a spare bedroom. Police observed that both parties were well affected by alcohol.
On 3 April 2013, the Applicant attended Cronulla Police Station in relation to issues between him and his then partner, reporting that the arguments had increased over recent weeks and he had made the decision to end the relationship, and wanted Police to assist him with advising his partner that she wasn't welcome at his home anymore. Police subsequently attended the Applicant's home and informed his partner that the Applicant wanted her to move out. She immediately left the location and indicated that she would get a family member to remove her personal items.
On 12 December 2013, the Applicant and his then partner attended the Cronulla RSL club where they consumed several alcoholic drinks and subsequently walked across the road to have dinner at the Little Italy restaurant. The Applicant's partner alleged that whilst at dinner, the Applicant punched her to the left cheek, and then left the premises in his vehicle.
The Applicant's partner walked back to the Applicant's home and had to climb over the front fence due to the Applicant locking her out. It was alleged that the Applicant came out the front and pushed her into a bed or roses, and then pulled her around the front yard by her ankles. It was also alleged that the Applicant flashed a torch light into her eyes. The Applicant's partner has a medical condition and on medication for seizures. Police attended a short time later and spoke to the Applicant's partner, observing an injury to her face, bruising and swelling on her arm. She was subsequently conveyed to Sutherland Hospital.
When Police spoke with the Applicant, he stated that they had had an argument at Little Italy and that his partner had slapped him in the face and back handed him to his face. He reported leaving the restaurant, driving home and locking the house. The Applicant also stated that when he saw her climbing over the fence, he went outside and flashed a light on and off. After that his partner had laid down on the ground with liquids coming out of her mouth and moving around. He then walked out the back of his home and consumed a glass of wine.
The Applicant's partner refused to provide Police with a statement and wished for no further action to be taken. Due to the conflicting accounts provided, the Applicant was not charged, however as Police had fears that further incidents would occur, a provision apprehended violence order ("PAVO") was approved, but subsequently withdrawn.
On 10 March 2020, the Firearms Registry received information that the Applicant had been perpetrating domestic violence against his partner. Police assistance was requested to undertake a concern for welfare check within the context of a safekeeping of firearms.
On 1 May 2020, Police attended the Applicant's home in Cronulla, during which his partner was present. When the Applicant saw Police, he instructed his partner to take the dogs away and Police were unable to speak with her. A safe storage inspection was conducted the following day. Police formed a view that the Applicant's partner was a victim of domestic violence and held fears for her welfare.
On 8 May 2020 Police attended the Applicant's home, served him with a PAVO and a Firearms Suspension Notice. And seized his firearms and ammunition.
The Applicant's partner did not wish to provide a statement and the PAVO was withdrawn.
On 20 October 2020, the Applicant's AB Category firearms licence was revoked on the basis of information that the Applicant engages in abusive behaviour towards his partner, raising doubts regarding his ability to possess firearms safely.
On 15 November 2020, the Hellenic - Australian Hunting & Target Shooting Club wrote to the Firearms Registry to advise that the Applicant joined the club on 14 November 2013, and that his membership expired on 31 December 2014, and that during that time he had only completed two target shooting activities and one recreational hunting activity.
On 16 November 2020, the Firearms Registry received correspondence from the Sporting Shooters Association of Australia confirming that the Applicant had been a member of that Club since 3 March 2014, and his membership was due to expire on 31 March 2021. However, he had not attended any activities at the club in relation to Sport/Target shooting or his genuine reason of Recreational Hunting/Vermin Control since the 2015/2016 compliance period, and any prior attendances failed to meet the requisite number.
[10]
Senior Constable Kelly Swords
Senior Constable Swords set out details of her communications with Ms A in relation to the application for a Provisional ADVO. Ms A had indicated that she was not sure whether she wanted to provide Police with a statement but ultimately decided against it. On 23 September 2020, the ADVO was withdrawn.
Senior Constable Swords stated that she does not believe that the Applicant is a fit and proper person to hold a firearms licence or be in possession of firearms. Although no criminal charges or ADVO was proceeded with due to Ms A being unwilling to provide a statement, she believes that the Applicant has committed domestic violence offences throughout their relationship and that Ms A's safety would be jeopardised if Mr Hassall's firearms licence and firearms were returned.
She stated that in her experience as a domestic violence officer, the presence of a firearm in a domestic violence situation can intensify the level of fear and risk of serious injury for the victim of abuse.
[11]
Confidential Information reports
The Applicant is subject of a number of Confidential Information and COPS Reports.
In his confidential reasons for decision in Hassall v Police [2021] NSWCATAD 101 Senior Member Walker noted confidential evidence was provided by Senior Constable Swords.
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Following the hearing of this matter, the Applicant requested that the matter be re-listed for directions to deal with correspondence that Mr Mainstone had received from Ms A, after the hearing. Mr Mainstone provided a copy of the correspondence he received from Ms A, including:
1. a text message dated 20 June 2021 at 9:34pm which states
"I've just gotten home from this funeral and have copped it off Richard I locked myself in the room he's picked the lock and shoved me around. He's drunk";
1. a text message dated 20 June 2021 at 9:35pm which states
"I retract the statement. I'm done";
1. a text message dated 21 June 2021 at 2:44pm, which stated
"I know I shouldn't have txt you last night. I was tired and wanted him to stop, this is why counselling so is important which we haven't attended for some time. I don't retract my statement I was just upset. As you know I have supported Richard the entire process even contacting you for advice on how I can best support him and detail the police pressuring me to make a statement. I support Richard. I should be turning yo [sic] our counsellor not you".
1. a voice message received on 21 June 2021 at 2:21 pm, in which Ms A stated
"I'm sorry about the message that I did send to you last night I was just quite upset coming home and Richard just being a pig".
The Applicant provided a statement in which he stated that there was no yelling or physical contact between him and Ms A and no further communication that night. The Respondent objects to the Applicant's statement.
[12]
Submissions
The Respondent submits that it is clear that issues persist in the relationship between him and Ms A, and that the Applicant has not taken any steps to change his behaviour or rehabilitate.
Of significant concern to the Respondent is the text message from Ms A which states
"I've just gotten home from this funeral and have copped it off Richard I locked myself in the room he's picked the lock and shoved me around. He's drunk".
The Respondent notes that Ms A did not retract this comment in any subsequent correspondence with Mr Mainstone. In circumstances where the text was sent at or around the same time as the alleged conduct occurred, the Respondent contends that the text message should be given considerable weight by the Tribunal as evidence that the Applicant and his ex-partner continue to have a tumultuous relationship, resulting in physical violence.
The Respondent submits that it is troubling that no further statement has been provided by Ms A in relation to this incident.
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The Respondent contends that the decision to revoke the Applicant's firearms licence should be affirmed because of his involvement in domestic disputes and incidents of violence; his lengthy traffic history, and his failure to comply with participation requirements in relation to his genuine reason of sport/target shooting. The Respondent submits that the Tribunal should be satisfied that the Applicant is no longer a fit and proper person to hold a firearms licence and it is not in the public interest for him to continue to hold a firearms licence. Therefore, the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.
[13]
The Applicant's case
The Applicant relies on his own evidence. In relation to the COPS entries referred to by the Respondent he stated:
The matters of assault and malicious damage in 1995 were matters where no convictions were recorded.
He accepts that he was convicted of low drink driving in 2004, for which he received a fine and 3 months disqualification of his drivers licence.
He accepts that he has a number of traffic infringements on his driving record, however he has been a licensed driver for approximately 32 years and there are no major offences committed other than the low range drink driving offence.
In COPS Event 48487428 in 2012, he was reported by Police as a victim and was not charged with any offence arising out of that incident.
In COPS Event 51541343, he was reported as the victim in an incident involving Ms A, his then partner.
In COPS Event 511803350, he was reported as the victim in an incident involving Ms A, his then partner.
In COPS Event 53208233, he and Ms A became involved in an argument. Police did not charge him with any offence arising out of this incident and reported they believed the injuries Ms A sustained may have occurred when she fell over, which is correct as that is what happened. Ms A was very drunk at the time.
In COPS Event 55349679, Police investigated a matter relating to the use of a firearm at his property. The Police found that no offence had been committed.
At the time the Commissioner granted his firearms licence application in January 2014, he would have been aware of all of those COPS Events as well as his assault and drink driving offences.
Ms A began to suffer from anxiety and depression and was prescribed medication for this. She also suffers from epilepsy and is on medication for this. When Ms A is on this medication and mixes it with alcohol, her behaviour would become erratic and she could become violent.
In early 2020, he decided to end his personal relationship with Ms A. Due to their business relationship as well as the fact they had been in a de-facto relationship, he wanted to ensure the break-up was done properly so he sought legal advice and a letter was sent to Ms A outlining how he thought this could be best handled. Ms A became upset at him breaking up the relationship and at times there were ongoing heated arguments between them.
In May 2020, he was served with a Provisional ADVO which had been taken out by the Police on Ms A's behalf. It is his understanding that Ms A never asked the Police to take out the application for the ADVO and that she did not make a statement to the Police that she held any fears of him or wanted an Order.
He opposed the application when it was listed for hearing at Sutherland Local Court on 23 September 2020. On 23 September 2020, the Police withdrew the application at court.
He and Ms A still have contact with each other on a regular basis as they are still business partners. They speak in relation to the business most days of the week and meet every couple of weeks. He would now describe their relationship as very good.
He holds no animosity towards Ms A and she has nothing to fear from him if he were to get his firearms licence back. He proposes to use his firearms for hunting as he enjoys doing that as a recreation.
He has never been charged with any firearm related offences and whenever the Police have inspected his firearms storage he has always been compliant.
The Tribunal can be confident that there would be no risk to anyone should he be given the privilege of getting his firearms licence back, and that he is a fit and proper person to be able to possess and use firearms.
Ms A provided a statement in which she described her relationship with the Applicant as good friends and business partners. She confirmed the view expressed by the Applicant in that regard.
In regard to the ADVO application she confirmed that she did not request the Police to make the application on her behalf and that she never provided a statement of complaint to the Police. She said the she had advised Senior Constable Swords that she never wanted the Police to make an application for an ADVO against the Applicant; that she had no fears in regards to the Applicant and that she was not going to provide the Police with a statement.
She said the she has no problem with the Applicant being the holder of a firearms licence and she supports his application to have the decision to revoke his licence set aside.
She said that she has no fears for her personal safety if the Applicant is allowed to have his licence back and has access to firearms.
In regard to the texts that Ms A sent to Mr Mainstone about an incident on 20, the Applicant denies there was any yelling or physical contact between him and Ms A as Ms A had asserted.
In regard to the Respondent's contention that he has failed to comply with Participation Requirements under Part 10 of the Regulation the Applicant said that he joined the Hellenic Australian Hunting and Target Shooting Club and he attended target shooting activities and a recreational hunting activity. He was unable to complete any attendances following the suspension of his firearms licence. He believed that he had complied with the requirements for his licence. He said that if he had not complied with the requirements then this was an honest mistake.
[14]
References
The Applicant relies on several references provide in support of his application. One reference was provided by the Applicant's brother. The remaining references were provided by people who have known him for a significant period of time. All of the referees consider that the Applicant is a responsible person and they are supportive of his application.
[15]
Submissions
Mr Mainstone has provided submissions on behalf of the Applicant. He submits that the Tribunal should place no weight upon the Respondent's submission in regards to the Applicant having a history of violence insofar as it pertains to incidents in which the Applicant was the victim.
Similarly, while the Applicant accepts that Police made an application for an ADVO against him in May 2020, it is submitted that the Tribunal should place little weight upon the application as no charges were laid against the Applicant and the application was withdrawn. In her statement Ms A made it clear that she has no fears regarding the Applicant having access to firearms and supports his Application before the Tribunal. The Applicant submits that the Tribunal can place significant weight on the open evidence of Ms A.
In contrast, Mr Mainstone urges caution in regard to the weight to be given to the confidential evidence of Senior Constable Swords as the Applicant has not had the opportunity to test this evidence.
In regard to his traffic record, the Applicant submits that a driver who commits, on average, far less than one infringement per year over a 32 year driving career does not show a disregard for traffic laws or have a "lengthy traffic history" as submitted by the Respondent.
The Applicant accepts that he has not fulfilled his attendance requirements insofar as his genuine reasons for holding his firearms licence are concerned. His evidence is that he attended a number of shooting activities, but it is clear that these were not formal attendances which would have been recorded against his licence record. This is clearly an oversight on his behalf and he does not resile from the concern the Respondent and the Tribunal would have on this issue. He submits that should he be allowed to keep his firearms licence he would be vigilant in ensuring he complies with all attendance requirements in the future. He further submits that this issue, when looked at in isolation, would not mean he is not a fit and proper person or that it would not be in the public interest for him to hold a firearms licence.
In relation to the further evidence provided by the Applicant regarding the text messages sent from Ms A to Mr Mainstone, it is submitted that it was open to the Respondent or the Tribunal to cross-examine the Applicant in regards to the statement. The Tribunal can accept this statement into evidence and place what weight is deems appropriate, regardless of whether the Applicant is cross-examined or not. The Respondent has chosen not to cross-examine the Applicant regarding his statement and, on that basis, his evidence as contained in that statement is unchallenged by the Respondent.
The Applicant submits that, when taking into account the available evidence, there is virtually no risk to public safety should he again be granted the privilege of holding a firearms licence.
He submits that the decision to revoke his firearms licence is not the correct or preferable decision and the Tribunal should set that decision aside and order the reinstatement of his licence.
[16]
Consideration
This is a matter in which the confidential evidence has a significant bearing on the outcome. I appreciate that this places the Applicant at a significant disadvantage as he has not been given access to that material and therefore he has not had the opportunity to test it.
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It is readily apparent from the evidence that considerable tension remains in the relationship between the Applicant and Ms A. The texts that Ms A sent to Mr Mainstone support this view. In my view, the conflict is at its highest when the Applicant has consumed alcohol. In her text Ms A alleged that the Applicant was drunk and she did not retract that allegation. This indicates that the Applicant has not dealt with the issue of his abuse of alcohol adequately.
The principal issue in determining public safety is whether or not there is a risk to the safety of the public if the Applicant's licence to possess firearms is returned to him. Consideration of the safety of the public includes consideration of the Applicant himself and Ms A.
There is no evidence to suggest that the Applicant has ever misused firearms. However, there have been many examples in the Tribunal of situations in which the presence of a firearm in a troubled domestic relationship has led to serious injury or death.
Nevertheless, it is my view that there remains a risk to public safety until such time as the Applicant is able to demonstrate that he has taken steps to control his abuse of alcohol. That being the case it is not in the public interest for him to have access to firearms at this time.
Therefore, the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.
I do not need to consider the question of whether the Applicant is no longer a fit and proper person to hold a firearms licence. However, I note that the evidence of his behaviour that is associated with his abuse of alcohol suggests that this might be the case.
It follows that the correct and preferable decision is to affirm the decision of the Respondent to revoke the Applicant's firearms licence.
[17]
Order
1. The decision under review is affirmed.
[18]
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: 10 February 2022