Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bowie v Commissioner of Police [2022] NSWCATAD 211
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 254Bowie v Commissioner of Police [2022] NSWCATAD 211Briginshaw 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
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
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 36
Lawler v Queensland Police GAR 305 - 21
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] NSWCATAP 10
Petricevic v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 22
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
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
Tannous v Commissioner of Police, New South Wales Police Force [2011] NSWADT 116
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
The applicant Mr Toni Hristovski applied to this tribunal on 26 August 2022 for review of a decision by the respondent Commissioner to refuse his application for a category AB firearms licence for which he had applied on 20 September 2021.
The applicant had held and renewed firearms licences from 2004 for the stated reason of recreational hunting/vermin control (hunting club). On 7 October 2019, he was issued with a notice of suspension of his firearms licence after he was charged with assault occasioning actual bodily harm, and common assault. He also became subject to a provisional apprehended violence order (PAVO) in connexion with the events leading to those charges. As a result of the matters with which he had been charged, the applicant's firearms licence was revoked on 22 September 2020.
He was found guilty on 26 November 2020 of common assault in relation to an incident involving his wife and a member of the public, and was sentenced to a two-year conditional release order (CRO) without conviction. On 17 December 1996 he had been found guilty of common assault (indictable) and sentenced to a 100-hours community service order without conviction. On the same date he was found guilty of malicious damage and given a $500 fine.
Over several years the applicant had been involved in an ongoing dispute with his neighbour at Bexley, pursuant to which both parties made numerous reports to police of harassment and intimidation. On a number of occasions the applicant's interactions with police were viewed by them as rude and aggressive.
On 20 September 2021, the applicant applied for a new category AB firearms licence, the application being refused on 23 September 2021. He sought an internal review of the refusal decision on 15 October 2021 and on 17 August 2022 a delegate of the respondent issued the internal review decision, which affirmed the refusal on public interest grounds. The applicant then applied to this tribunal on 26 August 2022 for administrative review of the refusal decision.
[3]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license 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(7) states that "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[4]
The evidence
The respondent adduced no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1) and on cross- examination of the applicant and of Mrs Verche Hristovski.
[5]
Mr Toni Hristovski (Applicant)
In oral evidence at the hearing the applicant adopted his signed statement dated 2 November 2022 (part exhibit A1) in which he stated that he is aged 49 years and has four young children with his wife Verche Hristovski. He holds a diploma in dental technology and practised as a dental technician for 18 years, operating his own practice. In 2015 he had a career change and is currently running his own business in the construction industry, performing project management and related functions. He currently holds a contractor's licence and has completed his certificate in building and construction to achieve his builder's licence.
In 1995, to the best of his recollection, he was charged with common assault and malicious damage, the sentence for which was reduced on appeal in 1997 to a s 556A recognizance (equivalent to a current s 10 discharge). He had been "young and stupid" at the time and had since grown up and matured. He married in May 2008 and they have four children together.
In relation to statements by police with their neighbour, that occurred with he [the neighbour] and his wife at times, as he was rude and angry to their children. He supported his wife and children and on a couple of occasions did contact the police for support, due to their neighbour's intimidating behaviour when he was present. His wife had placed an interim PVO on the neighbour. This was all resolved and they had since moved far from the Bexley area to Tahmoor.
On 7 October 2015 they had attended a barbecue at Oatley Park. On the way home, at about 6 pm he and his wife had a disagreement about a barbecue and she threw it in the bin. His wife had stopped the vehicle and got out to walk back and get the barbecue from the bin, so he also got out and called her back as to say that they would drive off. The weather being warm, the windows of their vehicle were open, such that any person nearby would be able to hear the verbal disagreement.
As they both got back into the vehicle, his wife turned right into a private driveway and instructed him to drive. At that point a man walking along the footpath observed the verbal disagreement and approached their vehicle. He had made the assumption that the applicant was drunk because he had asked his wife if he had been drinking. As he sat in the driver's seat waiting for his wife to get in, the stranger reached in through his window and took his keys.
[6]
Mrs Verche Hristovski
The applicant tendered a signed statement by his wife Mrs Versche Hsritovski dated 2 November 2022 which stated that while they were living at Bexley, she was the person who was most concerned about the troublesome neighbour, not her husband. On a number of occasions, she and her children encountered several concerning events against them which left her no choice but to place an interim PVO on the neighbour for their safety.
Her husband in most cases was not even present on these occasions, he was at work as he is the income earner. He was aware of the situation and they were both advised by police that if they had any problems, they should contact police. The applicant contacted the police on her behalf a couple of times as they were concerned about their safety.
On 7 October 2019 after the barbecue at Oatley, the way that had all unfolded was very unfortunate as they are a very close family and have always sorted out their own problems. Her husband was out of character and she had not seen such a thing before. He had been so remorseful and concerned that he attended a stress and anger management program and also obtained a psychological assessment report.
She has been with her husband for over 15 years and they have a great life together with their four beautiful children. At times to other people they may seem a little over the top, yet that is because everyone is different. She would like to emphasise that they have a great marriage and always come to a mutual agreement. Her husband is a loving and caring person who at all times puts his family first. He is a great father and role model for their children. She has the greatest confidence and belief in her husband and does not fear her husband in any way.
At the oral hearing the witness reiterated those points, adding that she had objected to the neighbour picking on her children. The applicant was not present on those occasions. The police had asked him to phone them if he needed to, and although he was stressed, he did not shout at the police.
On 7 October 2019 the applicant was not drunk, having had only a couple of drinks. He was not drinking regularly. He did not pull her out of the car by her arm and the witnesses had no reason to ask her if she was all right, but they might have thought so because they were talking loudly, but not arguing. She was not surprised that others had said he was shouting, because they were loud. She had said the witnesses were "Making it worse for us" by taking the keys. He had not pulled her out of the car by her hair.
[7]
Applicant's submissions
On behalf of the applicant, Mr Kable pointed out that the applicant had held a firearms licence from 2004 without any breaches of the regulations or any suggestions of wrong conduct.
Most of his traffic violations occurred long ago, and they had been only four in the last 5 years. His record did not warrant firearms licence revocation. The tribunal had said in Tannous v Commissioner of Police, New South Wales Police Force [2011] NSWADT 116, [32] - [37] that as traffic laws are aimed at ensuring public safety, repeated contravention of those laws can indicate a person's disregard for other regulatory schemes aimed at ensuring public safety, such as firearms. But in that case the applicant not only had a poor driving record, but also had accumulated other offences, and overall his record was much worse. The applicant in this case has had no breaches of firearms laws.
As regards the 1995 charges of assault and malicious damage, there had been an appeal on all grounds that had resulted in the sentence being reduced to a s 556A discharge and the revocation of the community service order. Those matters occurred long ago and there had been no other instances of assault until 2019, only a report of "belligerent" conduct in 2003.
The 2019 matter had never been heard in court and the defence position was that the prosecution statements were partly contradictory. The applicant had pleaded guilty to assault. In the present case the applicant' evidence was straightforward and credible, contradicting the prosecution version, and should be given greater weight.
The applicant had made a significant lifestyle change by undertaking the anger and stress management course and obtaining a psychological report. His mental health was not in issue. The Queensland case of Lawler v Queensland Police GAR 305-21, para 52, had held that even when mental health is not in issue, psychological evidence can help to show how a person is at the present time, which can help to establish fitness and propriety. His verbally aggressive interactions with police were neither here nor there and resulted from his concern for his children.
The psychological report by Mr Michael Kruger-Davis (part exhibit A1) offered the expert opinion that the applicant was highly unlikely to reoffend given his completion of a stress and anger management course, and his expression of regret and remorse. That attitude was a significant factor and had been repeated at the hearing. Mr Kruger-Davis had not been required for cross-examination.
[8]
Consideration
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.
[9]
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.
[10]
Incident of 7 October 2019
The respondent contends that the applicant is not a fit and proper person in light of the events of 7 October 2019, which led to the applicant being found guilty of common assault (against his wife) on 26 November 2020 at Sutherland Local Court and made subject to a conditional release order (CRO) without conviction for a period of two years, concluding on 25 November 2022.
The incident is described in the police fact sheet for charge H72801575 (part exhibit R2) and in police event report E141643802 (exhibit R1, pp 50 - 80), which accurately in all material respects reflect detailed contemporaneous handwritten, signed and witnessed statements in an attending constable's police notebook (document F676124, part exhibit R2). The statements are by two separate independent witnesses who were themselves actively involved in the incident. A typed version of one of the statements is also in evidence (ibid.). The names of the witnesses have been redacted. As Mr Kable pointed out, the statements were not tested in a court hearing, but the tribunal in merits review is able to consider evidence of conduct regardless of acquittal or conviction, and is not held to the criminal standard of proof.
The police fact sheet accurately summarizes the contemporaneous primary material. It states that at about 6 pm on 7 October 2019 the applicant, his wife and their four children arrived in their vehicle at Gungah Bay Road, Oatley. Mrs Hristovski was driving and the applicant was in the front passenger seat, "not driving due to being under the influence of alcohol". The applicant and his wife began to have a heated verbal argument in the vehicle and the vehicle stopped in a private driveway, whereupon both parties got out and continued their argument. At that time one of the witnesses was having dinner in his nearby residence and heard the argument.
After a short argument outside, both parties re-entered the vehicle, where the verbal argument continued. At that time one of the witnesses ("Witness 1") approached the vehicle and observed Mrs Hristovski in the driver seat with the applicant in the passenger seat. Then the applicant got out and moved over to the driver side before opening the door and pulling his wife out of the driver's seat by her arm, causing her to fall to the ground. Witness 1 then asked her "Are you OK? Has he been drinking?", to which she replied "Yes, he's been drinking".
[11]
Other incidents
In addition to the incident of 7 October 2019, the respondent submits that the applicant has a repeat history of engaging in violent, aggressive and antisocial conduct, demonstrating a tendency to act with uncontrolled volatility and aggression in public, and with disregard for public safety.
Thus, on 17 December 1996 at Sutherland Local Court he was sentenced to a community service order for 100 hours for an indictable common assault and was fined $500 for malicious damage. Those offences arose when he was aged 23 and, as he puts it, was "young and stupid" and by themselves might not now carry substantial weight. The respondent relies on a number of other incidents, however, including one on 6 March 2003 when he was stopped by police for speeding and driving without a seatbelt.
The intelligence report describing the incident (exhibit R1, pp 90 - 92) describes his conduct as being hostile and argumentative and involving an attempt to intimidate police by threatening to make a complaint against them. He demanded police details in the form of "your number", but was told that the only form of identification available was the police nameplate worn by the issuing officers. He refused to accept that as identification and could only be convinced to do so after a lengthy discussion. His actions and demeanour caused police to form the opinion that he might be capable of violence towards police, his behaviour suggesting an intense dislike for police.
Again, on 17 October 2019 police attended the applicant's house for the purpose of a provisional AVO compliance check. Mrs Hsritovski, the person listed as the person in need of protection under the AVO, was reportedly extremely uncooperative, aggressive and hostile. While standing at the front door to the house, she called the applicant and told him not to open the front door to speak to police. He did not speak to police on that occasion, making it impossible to finalize the provisional AVO compliance check. Similarly, when asked on 28 October 2019 to attend Hurstville police station for the compliance check, he refused to attend (exhibit R1, pp 27 - 31).
There was also a succession of incidents involving complaints by or against his neighbour that resulted in multiple complaints to police by and against the applicant. For example on 8 June 2020, he filed a complaint against his neighbour at Kogarah police station, where he was reportedly rude to police and displayed agitated behaviour (id., 41). On 9 September 2020, he refused to be interviewed by police in relation to an incident allegedly involving the applicant and damage to a neighbour's vehicle. The applicant hid in his house and refused to come to the door, while his wife stood guard and refused to allow police access to him (id., pp 17 - 25). On 17 April 2021, he became verbally aggressive to police at Hurstville and Kogarah police stations when reporting and pursuing a complaint against his neighbour (id., 49 - 54).
[12]
Driving record
The respondent also submitted that the applicant's history of driving offences showed his disregard for compliance with the regulatory or licensing schemes he interacts with. Since 1990, he has regularly been recorded as committing numerous driving offences and infringements, including three relatively recently, two for speeding and one for a traffic light, since 2019. His record shows 23 offences, two separate demerit points cancellations and six demerit points warning letters, the most recent on 21 February 2022.
The applicant's driving history over a period of 22 years shows a repeated disregard for his legal obligations, leading to his repeated licence cancellations and suspensions. The pattern of driving offences, and an apparently casual attitude towards traffic laws. indicate an unwillingness to comply with legal obligations, including those aimed at ensuring public safety. Although the frequency of offences has declined in recent years, the applicant has displayed an unfortunate reluctance or inability to learn from his mistakes.
In his written statement the applicant did not mention his driving record, but in oral evidence admitted he had "made mistakes", but claimed to "respect the law". His record remains a poor one, however. In Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81], the tribunal stated that repeated breach of traffic laws and regulations aimed at protecting public safety indicated an unwillingness to abide by the statutory safety standards governing firearms licensing.
[13]
Evaluation on fitness and propriety
Section 11(3)(a) of the Firearms Act provides that a licence must not be issued if the respondent (or on review this tribunal) is not 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. In the case of a licence application, as here, as opposed to a revocation, the requirement is mandatory and there is no discretion. A positive finding of fitness and propriety is required.
The applicant is a married man aged 49 with four children who holds a diploma in dental technology and operated his own practice in that field for 18 years. He changed careers in 2015 and is currently conducting his own business in the construction industry, performing project management and other functions. He holds a contractor's licence and has completed his certificate in building and construction, leading to a builder's licence.
He has tendered a character reference dated 10 October 2021 from Mrs Janina Veri, who currently works for the New South Wales Department of Premier and Cabinet as a senior investigator monitoring compliance in relation to industrial relations matters on construction sites funded by the state government. She has known the applicant since he was 7 years old as a son of close family friends. She and her husband have maintained close friendship with the Hristovski family since 1980.
He was a good child and a very ambitious teenager in everything he wanted to achieve, especially with his studies. She had tutored him in mathematics and helped him to prepare for HSC and entry examinations to tertiary education. He married Verche in 2008 and they have created a wonderful young family, with. four well-behaved children She has observed him being a good husband and father, looking after his wife and their four children. He is the breadwinner for his young family. Mrs Veri understands that his firearms licence was revoked due to "an unfortunate once-off incident which Toni regrets wholeheartedly". He had spoken to her about it with a broken heart and deep regret. The incident was out of character for Toni with his general behaviour, his consciousness and demeanour.
He is safety conscious with firearms, being taught strict safety rules and precautions by his father and then himself as an adult. He does not pose any threat to his wife, family or the public.
[14]
The public interest
The respondent also submitted that issuing a licence to the applicant would be contrary to the public interest within the meaning of s 11(7) of the Act.
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].
[15]
Conclusion
On the basis of all the evidence I conclude that the applicant is not at present a fit and proper person to hold a firearms licence and that it would not be in the public interest for him to hold a licence at present. The decision under review must be affirmed.
[16]
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: 16 February 2023
Parties
Applicant/Plaintiff:
Hristovski
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
To his surprise, both he and his wife got out of the vehicle to retrieve their keys. As he approached the stranger and asked for his keys, the stranger told him he was a black belt in self-defence. He replied that he was not interested and asked if he would please return the keys, as did his wife. Finally he handed the keys back to Mrs Hristovski, and she then gave them to him. At that point he pushed past his wife to get back into the vehicle; he had pleaded guilty for that action as a common assault. As his wife told their children to get back in the car, he was in the driver's seat with his door open when another man approached and insisted on telling him not to drive. At that point he felt uncomfortable with the two strangers involving themselves in their family ties.
The second man then tried to reach into the vehicle to take the keys again and mumbled something about his family. At that point he had had enough and got out so as to push him away so they would go away. They had their own dealings and did not need strangers making allegations. As he rushed towards the man to push him away, the man tackled him and he lost his footing, ending up on his back, with the man on top of him. His reflexes as he fell backwards caused him to hold onto the man's shirt.
The applicant admitted that he was the aggressor and understood that it was the wrong action to take at the time. He had completed a stress and anger management program successfully. That was out of his character and the stress and anger management program had helped him with coping strategies for dealing with those types of situations, if it was to occur again. He had made a mistake and that would not happen again.
The other man then came from behind him and placed him in a chokehold, whereupon his wife and children came to his defence. Once both men had released him, he and his family re-boarded the vehicle to go home. Later the police attended at their house. The whole scenario had unfolded into a complex and unnecessary event with no intention. The event of 2019 was an aberration, completely out of character and would never occur again. He wished to add that this event and his behaviour was totally out of his character and that his family is the most precious part of his life.
He feels that the whole situation was taken out of context and could have been avoided. That had made him realize how sorry he was for his actions and that it would not happen again regardless, for his own well-being and his family, which he heartily loves. He has learned a lesson in his life and would take it all back if he could, yet that was not possible. So he could with the greatest of confidence say that it would not happen again. He is a good citizen and has great respect for the law, society and the safety of others.
It was well known that in the past two years the world had gone through an unforeseen pandemic, COVID - 19. Through the whole pandemic, he and his family kept safe, abided by the law and the decisions of government. He would like to emphasize that he has a great marriage with his wife and family life. They are a close family and have had many years together. He would like to add that in mid-2020 he successfully completed a stress and anger management program with Enough is Enough. Further, in July 2021 he also completed a psychological assessment report with great confidence.
He was sincerely remorseful for all his actions and had learned a valuable life lesson. He could confidently say that those actions were out of character and nothing similar would happen again. He is a good person who loves his wife and family and tries to be a role model for his children.
In oral evidence in person at the hearing the applicant reiterated those points, adding that he had been brought up with guns and realizes that safety is the primary consideration. He had made mistakes and one episode was out of character and not resulting from choice. He regretted the incident and had been through a process in relation to it, making him better able to manage and able to be trusted. He worked hard for his family, who are his life. He has started a new chapter in life and is contributing to the community, through the rural fire service and community activities at Tahmoor.
Cross-examined by Ms McMahon on behalf of the respondent, the applicant explained that his dispute with the neighbour arose out of his supporting his family. His children had been playing on the footpath, and he had parked his boat on the street. He had complained to police about the matter, and they advised him to contact them if there were any further disturbances. The neighbour had engaged in childish actions, having been upbraiding the applicant's children. He made a point of staying away from the neighbour. He respected the police but had been disappointed with the lack of police action and had spoken to them "in a high tone" because his children had been frightened.
On 7 October 2019 there had been a verbal dispute between him and his wife, but no abuse. He was found guilty of assaulting his wife because he had brushed past her. He had consumed a couple of beers but had never had alcohol issues. Asked about the letter from Enough is Enough (part exhibit A1) referring to alcohol misuse problems, he replied that he had never been a daily drinker. He had undertaken a mental health program, but it was for self-improvement.
He had not been intoxicated at the time of the incident and did not know of any reason why the witnesses would have lied about it. He had not dragged his wife out of the car or pulled her hair, but had accidentally brushed past her. He had assaulted the man, however, because the latter had said something about his family. The man had been injured and he regretted the episode as it was out of character. The 1995 assault matter had been 24 years ago.
He agreed that he had accumulated 23 driving offences and accepted that traffic laws were designed to protect public safety, but he respected the law. He had made mistakes and did not feel good about them. His latest infringement was in December 2021 and he was sorry about it. He had got carried away that day and had called a bricklayer on his mobile phone. Despite his alleged hostility towards police in March 2003, he respected the police, who had a hard job. He had a number of friends who were police officers.
The applicant agreed that the psychologist's report by Mr Michael Kruger-Davis dated 3 August 2021 (part exhibit A1) had been based on what he had told the psychologist. Ms Mc Mahon pointed out that the stated reason for the referral to him was that he had been "involved in a verbal argument with his wife following a family BBQ", but there was no reference to any physical violence. He replied that he had in fact told the psychologist about it. The report also stated that he had "a good driving record", though with some speeding fines and that he had no criminal record. He said that statement was correct as he had appealed and the sentence was reduced to a s 556A discharge.
He agreed that he now admitted there had been some violence and stated that the report was not complete, and he believed it was a summary. Asked about the absence of any reference in the report to his attack on the witness, he replied that he did not recall. He said he was being truthful in that regard.
Asked whether the witness statements and police records were consistent, he replied that he had never looked at that aspect. He was then referred to contemporaneous police notebook records (F 676124, exhibit R2, p 27) which stated that he had opened the driver side door and pulled the driver (Mrs Hristovski) out of the car by her arm, causing her to fall to the ground. He said that was not true.
Nor was it true that a witness had asked his wife, "Has he been drinking?". Nor that she had replied "Yes, his [sic] been drinking" (id., 28). As to the witness's statement that the applicant had come towards him, his face showing aggression and he seemed tense, causing the witness to raise his arms, he replied that he did not recall and that he had not been tense, and simply wanted his keys back.
Ms McMahon then put to him the passage in the notes (id., 35) quoting the applicant's wife telling the witness "You're making it worse for me. Give me back the keys, I'll drive him home", to which he replied that he was not 100 percent sure. He denied that he had pulled his wife out of the car by her hair (id., 34), saying that he had given the keys to her but she had handed them to him so he could sit in the driver's seat. He had pushed past her to get into the driver seat. He did not recall the witness asking the second witness to call the police (id., 35).
He said he had been the aggressor in relation to the witness, and was remorseful about it, but had not thrown him into a tree (id., 37) and he was not strong enough to do so. The man had tackled him, and he lost his footing and grabbed him by the shirt as he fell backwards. The other man had placed him in a chokehold. His wife and children had come to his defence.
Questions were then put to the applicant in connexion with a witness statement dated 7 October 2019 made to police by a person whose name is redacted. The maker said he could hear the other witness saying to the applicant "Your [sic] drunk, you can't drive, think of your kids, think of your wife", while his wife was saying "Let me drive, your [sic] drunk". He said he did not recall those statements. He denied the witness's assertion that the applicant had grabbed him around the head and dragged him towards a nearby tree before throwing him down, causing him to strike the tree with his chest. He agreed that he had been the aggressor, but he had not dragged him. He had grabbed him by the shirt as a reflex action and did not know there was a tree there.
He did not agree that the various records were mutually consistent, but he could recall the allegation about pulling his wife by the hair, though it was not true. He had brushed or pushed past her, not in a barging action, and she had not fallen to the ground. He said he sincerely regretted the incident and had made a mistake, but not a choice. It would not happen again. They had been living for a year in their new property, and the course he had undertaken helped him to manage stress. They are a close family.
He had walked over to the second man, and as she was concentrating on the children, as her daughter was screaming, she did not see everything. He had passed by her but did not push her. It would have been out of character for him to get out of the vehicle and approach the other men. She did not see him grab a man but did see him trip, and the other man had fallen on him. The other put him in a chokehold, whereupon their children rushed to assist him. He had never been violent to her. She was aware that he had a conviction for physical violence, but that was before she was with him.
She did not know the two witnesses and knew of no reason why they would lie. But they had assumed he was drunk and seized his keys.
The applicant also tendered a character reference dated 10 October 2021 from Mrs Janina Veri, a senior investigator monitoring compliance with industrial relations matters for the Department of Premier and Cabinet. The contents are summarized below.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 the applicant had a conviction for domestic violence, but the tribunal had returned his licence. In this case there was no conviction and the applicant was no longer on a bond. In Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [42], I had observed that an applicant was not required to have had an exemplary past.
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32] had explained that a balanced view had to be taken of risk. In that regard a person's prior conduct was relevant. The reports of belligerent behaviour on the applicant's part were based on entries in the COPS database and were not substantiated, nor had they been the subject of cross-examination. They deserved less weight. Bowie v Commissioner of Police [2022] NSWCATAD 211, in relation to a category H licence, had set aside a significant history of aggressive behaviour towards police some years earlier.
Petricevic v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 24 had set aside a history of belligerent behaviour, drug abuse and driving offences. The tribunal had said that how the applicant presented at the time was the issue, and he had reformed and matured.
Mrs Hristovski's evidence had also shown that the applicant had reformed and matured, and had put the matter of the conflict with the neighbour in context. The 2019 episode, she said, was out of character. She denied some of the allegations made in the respondent's evidence.
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 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].
After that the applicant entered the driver seat and closed the door, the window being open at the time. The witness approached the vehicle before reaching in and taking the keys from the ignition, then walked away saying "I'm not here to cause trouble. I just want to make sure you and the kids are okay because you've been drinking". The applicant then began to walk towards the witness and appeared highly agitated, and the witness said to him "I know self-defence". Mrs Hristovski, who was standing nearby, said to the witness "You're making it worse for me. Give me back the keys I'll drive him home". The witness gave the keys to her.
Mrs Hristovski then sat in the driver seat and the applicant began to walk towards the passenger side, but appearing to change his mind, walked back over to the driver side and pulled Mrs Hristovski out of the vehicle by her hair, causing her to fall to the ground once again.
While this was occurring, "Witness 2" was across the street from the incident and was asked to contact the police. The applicant was in the driver seat with his wife saying to him, "Let me drive your [sic] drunk". Witness 1 [apparently, as the name is redacted] said to the applicant, "We are going to call the police you can't drive", whereupon the applicant got out and began to run towards the witness. He then seized the witness by the head, dragging him towards the ground. In the process the witness had been thrown against a tree, which caused a forceful Impact to the left side of his ribs, causing immediate pain, grazing and red marking.
Witness 1 fell to the ground with the applicant still clinging to him, as Witness 2 came to his aid and placed the applicant in a headlock. The applicant's children approached Witness 2 (one screaming "Let my dad go", according to the officer's notes). The applicant then got up and entered the vehicle with his wife and children, before leaving the location. Shortly afterwards police attended and spoke to the parties involved and obtained details.
The applicant admits he was "the aggressor" in the scuffle with Witness 1, but in his witness statement dated 2 November 2022 says nothing about violence towards his wife, except that he "pushed past" her to get back into the vehicle. In oral evidence he repeatedly said he had accidentally "brushed past her" and denied dragging her out of the vehicle or pulling her by the hair or that she had fallen to the ground. He said he had not been drinking, apart from having a couple of beers at the barbecue, and said he was "not 100 percent sure" that his wife had said to Witness 1 "You're making it worse for me. Give me back the keys, I'll drive him home", rather than "You're making it worse for us", a significant difference. He denied throwing Witness 1 at a tree, saying he was not strong enough to do so and he did not know there was a tree there.
He said he could not recall Witness 1 saying to him (statement para 9) "You're drunk, you can't drive, think of your kids, think of your wife". Nor could he recall his wife saying "Let me drive, you're drunk" (ibid.).
In her written statement of 2 November 2022, Mrs Hristovski made no mention of any violence towards herself or anyone else, saying only that "My husband was out of character, and this hasn't ever happened before. He has been so remorseful and concerned….." In oral evidence she said the applicant was not intoxicated at the time and had consumed only a couple of drinks. She had said to Witness 1, "You're making it worse for us" meaning that he was making it worse by taking the keys. She denied that her husband had pulled her by the hair or that she had fallen to the ground, or that he had pushed by her. He had never been violent to her.
As against those denials, the respondent relies on two contemporaneous written statements by separate independent witnesses that are identical in all material respects and portray a man in an alcohol-fuelled fury arguing vociferously with his wife and twice dragging her out of the driver's seat, once by the arm and once, incredibly, by the hair, causing her to fall to the ground both times.
The applicant said he could not be sure whether his wife had said to Witness 1 "You're making it worse for me", or "You're making it worse for us". He also said he could not recall Witness 1 saying (witness statement para 9), "You're drunk, you can't drive…." or his wife saying "Let me drive, you're drunk". Yet one would think he would have a better recollection of such a dramatic and relatively recent episode in which he played the leading role.
Again, if he had only "brushed past" or "pushed past" his wife, it seems improbable that he would have entered a plea of guilty of assault because of it or that a provisional AVO (later revoked) would have been issued for that reason. In light of all the evidence I conclude that the respondent's contemporaneous account of the events is to be preferred.
The respondent submits that the applicant's history of interactions with police raises concerns about his ability to act responsibly as required by police in the context of possessing and using a firearm. The applicant submits that those COPS reports are of no significance as they are not corroborated and the makers were not subject to cross-examination.
Police took a robust view of the situation: "Police believe there has been no offences committed and the situation seems to be an immature array of ridiculous disputes and claims between the two parties as they are currently involved in court proceedings against one another. No further action to be taken against either party" (id., 46). A few months later police observed, "It is evident to police that the two parties disagree in relation to a number of issues including parking, boats, noise etc…. Police suggested to both parties that they should consider mediation, otherwise the issues may escalate into AVOs being applied for" (id., 52).
Disputes between neighbours are unfortunately not uncommon and it is far from unknown for people to move away from a district in order to escape them. The applicant himself in fact moved from Bexley to Tahmoor for that reason and there have been no further reported instances of such disputes since then. None of the clashes involved any violence or other offences.
A somewhat concerning feature of the reports, however, is that all the incidents appear to have arisen after the 7 October 2019 episode, which suggests that the fracas did nothing to diminish the applicant's apparent propensity for volatile and angry disputes. Another is that all the reported confrontations with his neighbour occurred after the applicant had completed his stress and anger management program on 11 May 2020 (id., 137).
Mrs Hristovski's evidence was also supportive of the applicant, including in relation to the 7 October 2019 incident, though in her written statement she did not contradict the witnesses' account of his assault on her. In cross-examination she denied that he had been intoxicated, or that he had pulled her out of the car by her arm and later by the hair but said she was not surprised that the witnesses reported that they had been shouting, as they were speaking loudly. She admitted, however, that she knew of no reason why they would lie. She thought the witnesses had assumed that he was drunk and for that reason Witness 1 grabbed his keys.
The evidence records a number of instances in which Mrs Hristovski blocked attending police who wished to speak to her husband. They appear to be a close and loyal family, even to the extent that their children physically attacked Witness 2 when he was holding the applicant in a headlock, one girl screaming "Let my dad go". Mrs Hristovski is very supportive of her husband, despite his extraordinary attack on her on 7 October 2019. It may be that Mrs Hristovski has been willing to put the episode behind her for the sake of other considerations. Nevertheless, in such cases the result can be that the evidence in such circumstances must be viewed with some caution.
The applicant also tendered an assessment report by a psychologist, Mr Michael Kruger-Davis, dated 3 August 2021. In the course of two interviews with the applicant, the psychologist administered what appears to be the standard range of tests and concluded that the applicant is very unlikely to reoffend, first because he has ceased drinking alcohol, secondly because he undertook successfully a stress and anger management course and thirdly because he regrets the actions that he took on "that afternoon" (7 October 2019).
That positive conclusion is vitiated, however, by indications that the applicant gave the psychologist incomplete information. The report states that the reason for referral was that the applicant "was involved in a verbal argument with his wife following a family BBQ". There is no reference to the assault on his wife that led to his plea of guilty of common assault, or of his affray with the two witnesses. The report states that he has "a good driving record. He has had some speeding fines but has never been charged with reckless or negligent driving or driving under the influence". In fact, he has a very poor driving record which includes four infringements for negligent driving. The report also states that he "does not have a criminal record", but while he has no non-traffic convictions, he has had a fine for malicious damage, a community service order for indictable common assault and a CRO without conviction for common assault.
In oral evidence at the hearing the applicant's attention was drawn to the statement in the report that "The argument was loud but at no time was he physically violent towards his wife", to which he replied that he had brushed past his wife and he had believed that the report was more in the nature of a summary. He added that he did not recall whether he had mentioned his attack on the witness. The evidence shows those explanations to be unsatisfactory. For all these reasons the psychological evidence appears to have an unsatisfactory factual basis and does not merit substantial weight.
The applicant has no firearms offences or any reports of improper or negligent handling of firearms, and according to Mrs Veri is diligent about gun safety. Since the family moved to Tahmoor, there have been no more reports of conflict with neighbours and the applicant has involved himself in the rural fire service and other local community activities. Although he previously had an alcohol problem (see letter from psychologist Theo Simos 19 May 2020), he has ceased consuming alcoholic beverages and has successfully completed a stress and anger management course.
As against that, a major factor against his holding a firearms licence at this time is the outrageous assault on his wife on 7 October 2019 and the connected attack on Witness 1 which caused the witness not inconsiderable bodily harm. The repeated assurances that the event was "out of character" are not entirely correct, however, as he was found guilty of assault in 1996 and had been the subject of numerous reports of aggressive, combative and volatile behaviour, including some that post-date his completion of the stress and anger management course. He has expressed remorse and contrition about the events of 7 October 2019, but still denies the central facts. He also has an extremely poor driving record which, though it has seen some improvement in recent years, suggests a tendency to disregard laws designed to protect public safety.
Though it may be, as he says, that he has made a new start in life, too little time has elapsed to enable the tribunal to make a positive finding that he is now a fit and proper person to hold a firearms licence without danger to public safety, and I so find.
For the reasons given above in relation to fitness and propriety, it cannot now be in the public interest for the applicant to be issued with a firearms licence. His conduct on 7 October 2019 and his history of physical and verbal aggression and a poor driving record suggesting an unwillingness to learn from his mistakes are directly relevant to an assessment of his suitability to hold a firearms licence on public interest grounds. Further, his actions on 7 October 2019 occurred in a public place and resulted in injury to a member of the public. The applicant's conduct must be viewed as a whole and in light of the fundamental objects of the Firearms Act, including that firearms possession is at all times subject to the overriding imperative to protect public safety.