Hyde v Commissioner of Police

NCAT Administrative and Equal Opportunity|2021-05-06

Reasons for decision

The applicant Mr Shaun Robert Hyde on 14 December 2020 applied to this tribunal for review of a decision by the respondent Commissioner on 23 October 2020 to revoke his category AB firearms licence, which had been issued on 18 December 2018, to expire on 18 December 2023. His licence had been suspended on 20 June 2019 following his being charged with assault. All He had given as his reasons for seeking a licence "sport/target shooting" with club membership of the Sporting Shooters' Association of Australia (SSAA), and "recreational hunting/vermin control" with permission to shoot on a property at Blackmede.

Applicable legislation

A number of provisions of the Firearms Act and Regulation are relevant to this application. Section 19(3) of the Act states that "A licence is subject to such other conditions as may be prescribed by the regulations". Section 24(2)(d) provides that a licence may be revoked "for any other reason prescribed by the regulations".
Clause 15(1) of the Firearms Regulation 2017 provides that: (1) If a licensee's genuine reason for possessing or using a firearm under the authority of a licence can no longer be established by the licensee, the licensee must, within 14 days after becoming aware that the licensee has ceased to have that genuine reason, notify the Commissioner of that fact in writing or in such other manner as may be approved.
Under clause 20, "The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
Licences issued on the ground of sport/target shooting are subject to additional provisions, including cl 29(a): A licence that is issued for the genuine reason of sport/target shooting is subject to the following conditions (in addition to any other conditions to which the licence is subject) - (a) the licensee must comply with any applicable requirements of Part 10 (Participation requirements for club members)….
Clause 107 adds further conditions: 107 Participation requirements for sport/target shooters (other than pistol shooters) The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of adds least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
The issues in this application are thus whether the correct and preferable decision is that the applicant's firearms licence should be revoked on public interest grounds, 1. for the reason that the applicant has come to adverse police notice through his involvement in incidents of violent behaviour, sometimes in connexion with the consumption of alcohol, or 2. by reason of his non-compliance with participation requirements and failure to update the Commissioner on his reasons for holding a firearms licence, or both.

Respondent's evidence

The respondent did not adduce oral evidence but relied on documentary material, including the s 58 documents (exhibits R1 and R2) and a signed statement by Senior Constable Tony Fahey dated 19 March 2021 (exhibit R3).
The statement explained that SCst Fahey has been a police officer for 9 years and currently works in general duties at Kyogle police station. On 10 March 2019, Hayden ****, with his mother Joanne ****, attended at the station and made statements to the effect that he had been assaulted at the Kyogle Rodeo the previous night by the applicant and another man. The complainant mentioned two witnesses who observed the incident, named Jake Anderson and Rory Stephens. Statements were later obtained from both witnesses and were annexed to exhibit R3.
While S/Cst was interviewing Mr Stephens, the latter said that the applicant had been involved in another assault at the Kyogle Showground on 9 March 2019. No charges were ever laid in relation to that incident, as the victims were not from the local area, left Kyogle after being released from hospital and did not respond to the police request to provide statements.
The officer conducted an interview on 24 April 2019 with a witness and defendant named Tristan Bennett, who said that the assault on Hayden occurred at the bridge near Apex Park where the latter threatened the witness with a bottle, and because of that Bennett pushed him away and struck him a couple of times. He was vague about names but appeared to say that the applicant did not commit any assault at the bridge. He had, however, engaged in violence with Hayden because he was "mouthing off to a heap of girls". Bennett later pleaded guilty to one count of common assault. Statements were also obtained from other witnesses and were annexed to exhibit R3.
The statement by the victim Hayden **** (exhibit R3, annexure A) stated that he encountered the applicant at about 12:30 am on a Sunday morning of 9 to 10 March 2019 at the Kyogle Showground. He was with four other men and they all started talking normally until five women arrived, who also began talking with them. "During the conversation one of the females says something that was not right and I reacted by saying, 'You're a slut anyway'". The applicant then said, "You should have more respect, I have three daughters. You don't treat women like that". He agreed that he should not have said what he said, but the applicant punched him once on the left side of his face.
He moved off, but noticed that is the applicant and his friends were following him. He continued walking, but they caught up with him when he was across from the Kyogle caravan park, and one of the men began punching him. The applicant joined in. He did not know how many times the applicant and the afternoon punched him, but he just curled up on the ground trying to protect himself.
At about 5 am on Sunday 10 March, Shaun sent him a message on Facebook saying he wanted to come over to Hayden's mother's house and sort it out, calling him a "weak c**t". At about 5:30 am, the applicant arrived at his mother's house, but he had been asleep at the time and did not hear what was said. The next day he was, however, concerned for his mother's welfare if Shaun returned. Mrs Joanne ****'s statement (exhibit R3, attachment C) stated that Shaun had said he needed to speak to Hayden about the way he speaks to women. She told him he needed to leave, and if he did not leave she would call the police.
A statement by another witness, Jake Anderson (exhibit R3, attachment D) stated that at the Kyogle Showground at about 3 am, a group of men arrived, including one Hayden appeared to know and addressed him as Shaun. Hayden said something to one of the girls who was with the witness's group and was a friend of theirs. He then heard Shaun saying words to the effect of "that's not how you talk to a woman, you don't speak to women like that". He was then told that Hayden had been punched and saw Hayden walking away, apologizing a number of times. He witnessed a man wearing a blue Hurley shirt (apparently Tristan Bennett) assault Hayden near the bridge at Apex Park, but said nothing about any involvement by the applicant.
Another witness, Rory Stephens, stated (exhibit R3, annexure E) that he saw Shaun and Tristan assaulting two older men. Tristan pulled a large branch from a tree and started hitting the man with it. When another man came to help, they started to punch him. All the men were kicking the first older man and he could hear Shaun and Tristan saying they were going to kill the first old man and drag him down the hill so that police could not find him. At this point police arrived and Shaun, Tristan and the other man left the area, joining Anderson later. They were sitting around talking when one of the girls with them "started on Hayden" and Haley reprimanded her. Shaun had then said, "Don't speak to a female like that". Shaun then tackled Hayden to the ground and punched him about three times in the head. Tristan had then pulled Shaun away from Hayden, saying "stop, it's not worth it".
Anderson then heard Tristan say to Shaun, "Let' go get the prick" they started walking in the direction Hayden had taken. As they arrived at Apex Park, Anderson saw Tristen hit Hayden on the side of the head from behind and Hayden fell to the ground. Hayden was walking away when Tristen punched him. When Hayden fell, Tristen started to kick him around the head and ribs.
Kodi Stephen (exhibit R3, attachment F) stated that after midnight she was with a group of friends and was having words with Hayden, when a man she knew as Shaun said words to the effect of "Don't disrespect a lady". "Shaun started having a go at Hayden about disrespecting women, and Hayden was telling Shaun he was not doing that as we were friends. Shaun has then pushed Hayden a few times, but Hayden did not push back. I stood between Shaun and Hayden and told Shaun to leave Hayden alone, I was a big girl and everything was okay as I am friends with Hayden"
"Things seemed to settle for a few minutes, then Shaun started at Hayden again. I again stood in between them, and Shaun has then pushed me aside and I saw Shaun hit Hayden once with his right closed fist in Hayden's jaw. I told Shaun to leave Hayden alone, Shaun then hit Hayden once more with closed right fist, but I did not see where it hit Hayden. At no time did Hayden fight back. Shaun was pulled away from Hayden and I last saw Hayden walking away from the area".
Neither S/Cst Fahey nor the witnesses who provided statements were required for cross-examination.

Applicant's evidence

In oral evidence at the hearing, the applicant adopted his signed statement dated 22 February 2021 (exhibit A1) in which he stated that he is aged 38, lives at Geneva (near Kyogle) and has been with his wife for 19 years, for 12 years of which they have been married. They have three children aged 18, 15 and 9. His wife suffered a stroke in December 2015 that left her with a partial disability. He assists her with household chores and other duties that she is unable to perform because of her disability.
When he first applied for a firearms licence on 15 September 2008 he was a member of the Kyogle branch of the Sporting Shooters Association of Australia. His membership lapsed in 2010. When he renewed his licence from time to time, it did not occur to him to declare that he was no longer a member of the Association. During the time he has held a licence, he has been the subject of police inspections of his firearms and storage arrangements, with no adverse findings. He accepted as correct the respondent's firearms history and criminal history.
On the evening of 12 November 2011, he was accosted by two persons in the main Street of Kyogle, one of whom threw a punch at him, at which time he defended himself and struck his assailant. His assailant fell to the ground and struck his head, which caused injuries ultimately leading to his death. He was charged and ultimately acquitted of manslaughter following a jury trial. He had not been the provocateur of the incident and merely lawfully defended himself. After the proceedings, his firearms licence was reinstated, the letter referring to his previous good character as being part of the reason for the decision to lift the suspension.
During the incident he did not as alleged "react with aggression when antagonised". He had no knowledge of the incident described in police event record No. E 71017471. He had no knowledge of that event and had never been charged in relation to it. He did not know how his name became associated with it.
On 10 March 2019 he was involved in an incident in which he struck a man following his insulting a woman. He was charged with assault in relation to that incident, which is partly, but incorrectly, described in police event record No. E 136503001. He was charged in respect of two other matters referred to in that narrative, but those charges were withdrawn and another person was found guilty of those offences. The Firearms Registry failed to take into account the actual facts to which he pleaded guilty when considering his matter, and the claim that he had followed Hayden before catching up with him and continuing to punch and kick him was totally untrue, and any assertion to that effect was withdrawn by police when the matter came to court.
He had never been involved in an incident resulting in somebody suffering a broken collarbone, contrarily to the claims in the internal review decision. His charge on 24 April 2005 with driving with middle range PCA occurred when he was 22 years old and predated the issue of his firearms licence. He is a social drinker of alcohol, consuming in the context of social drinking every two or three weekends. He very rarely drinks during the week. He does not drink alone and really only when attending a function, or someone visits his house. He does not visit hotels and never drinks when in control of firearms. He does not take illicit drugs.
He hunts regularly on properties on behalf of the owners to keep vermin such as rabbits, pigs, foxes and wild dogs under control. During the time when his licence was current and able to be used, he would hunt vermin on a weekly to fortnightly basis. He is an experienced firearms user and has always used and stored his firearms in a responsible manner in accordance with the law. He has not come under any adverse notice by police in respect of his use or storage of firearms. He has never had an accident or an injury occasioned to himself or anybody else as a result of his use of firearms. He has ongoing interest and permission to shoot on properties for vermin control and hunting purposes. He does not suffer from any mental health issues.
At the hearing the applicant reiterated most of those points, adding that the exchange of messages referred to was incomplete, as Hayden had initiated the exchange. He had no knowledge of the incident that resulted in a person suffering a fractured collarbone and nothing of that nature was raised with him by the police.
He had not declared in his renewal applications that he was no longer a member of SSAA because he thought that if a licensee had more than one reason for having firearms, it was not necessary to remain a member of a shooting club. He had no intent to deceive, and if he had known the true position, he would have crossed out the relevant sentence. He had thought he did not have to keep his membership information going forward and had been told that he did not have to if he had other reasons for shooting. He agreed that he had signed the declaration in part G of his 2013 renewal application, having failed to notify his loss of his sport/target shooting reason.
He denied being involved with Tristan in the 9 March incident resulting in a person suffering a broken collarbone. He had been with Tristan for only about 20 minutes. He agreed, however, that he had pleaded guilty to assault and had punched Hayden in the face. Asked about his interview with S/Cst Fahey relating to the 2019 assault in which he denied assaulting Hayden and added "I haven't raised my hands in eight years", he admitted the statement to S/Cst Fahey was untrue. He had punched Hayden, but Hayden had not apologized for the insult to the girl or said he should not have said it. But his denial was untrue. He said he did not know why he had denied striking Hayden. He denied that one of the women had intervened and said she was not offended. He admitted that he did not think it was reasonable to assault Hayden over the matter.
He had gone to see Hayden at his mother's house at 5:30 AM to "sort it out". Asked if he often did that kind of thing, he said he had been in bed at the time and received a message from Hayden to go to his house. He had copies of the messages in question. (Over the adjournment, copies of the messages were shown to Ms Norquay, who agreed that they showed that Hayden had initiated the exchange).
In re-examination he explained that on the night in question he had ridden a steer at the rodeo. He used to ride bulls, but there is a section in the rodeo competition for older men in which they ride a bullock, about four years old, as they are less aggressive than a bull. For that reason he had not drunk very much that evening.
The applicant also relied on five recent character references from property owners, his employer and other members of the community (exhibit A3). They are outlined later in these reasons.

Applicant's submissions

At the hearing Mr Fuggle on behalf of the applicant relied on written submissions dated 23 February 2021 which pointed out that at no time had the applicant come under adverse notice for any breach of the firearms legislation in respect of his licence conditions and handling and storing firearms.
The applicant's failure to remove the genuine reason of sport target shooting from his renewal applications for a personal firearms licence in 2013 and 2018, and declarations relating to them, were innocent mistakes. His primary activity with firearms is hunting and vermin control as referred to in his statement and the statements of his referees. The front page of each renewal application form contains the words "if you wish to delete a category or genuine reason, strike out what you wish to delete on the printed list below". There is no explanation in respect of that invitation, although the third line of the declaration does refer to satisfying legislative requirements. There was no nefarious intent in signing the application, and in each case there is a disclosure of the charge of manslaughter brought against him in 2011, of which he was found not guilty. That supports the conclusion that the applicant was bona fide in his completion of the application and his explanation should be accepted.
As regards the incident on 12 November 2011, there was absolutely no evidence of wrongdoing or antagonistic reactions as alleged against him. Indeed, the letter dated 13 September 2013 lifting the suspension of his firearms licence notes his previous good character.
The internal review decision appears to combine two incidents into one when considering the incident on 10 March 2019. There were two incidents recorded by police that appeared to have occurred at the Kyogle Showgrounds, one recorded as E71017471, of which the applicant has no knowledge and for which he was not charged. In that incident a person was assaulted and suffered a broken collarbone. That was not the incident that resulted in the applicant being charged.
The second incident, E136503001, involved the applicant having words with the ultimate victim in respect of the victim's language towards a female person, and shortly thereafter punching the victim. That led to his plea of guilty of common assault. The two incidents are completely separate and yet have been combined in the findings of the internal review into one incident.
In this case the respondent does not allege that the applicant is not a fit and proper person to have a firearms licence, but rather that it is not in the public interest for him to have a licence. In that regard, only real and appreciable risk needs to be taken into account: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWCATAD 110; Hook v Commissioner of Police [2020] NSWCATAD 250, [80].
There are several factors that weigh in the applicant's favour: 1. while the applicant was charged and tried for manslaughter, he was found not guilty by a jury in circumstances where self-defence was raised and on the face of it accepted by the jury. There was no assertion that the applicant was the instigator of the incident. 2. The applicant's criminal record discloses no conviction for any firearms offence during the approximately 13 years that he has held a licence. There is no evidence that his holding a licence has ever created any danger or would be likely to create a danger in the future. 3. There is evidence that the applicant has been a responsible licence holder during the period in which he has held a licence and that he takes such responsibility seriously. 4. As to the concerns about the applicant's genuine reason for holding a firearms licence, there is no evidence to suggest any subterfuge by the applicant in respect of his primary purpose, but there is evidence of his continued and constant exercise of his licence privileges in respect of hunting and vermin control. 5. He is held in high esteem in his community and has a reputation as a responsible firearms handler. 6. From the applicant's interest in hunting and vermin control, there is a public interest in law-abiding persons conducting vermin control for rural properties in regional areas. 7. There is no significant, noticeable or realistic danger to public safety.
The tribunal should be satisfied, on public interest grounds, that there is no reason for the applicant not to hold a firearms licence, and should grant the applicant's request to overturn the revocation.
In oral submissions at the hearing, Mr Fuggle said that the respondent had cherry-picked the evidence and had not sought out proper information. The applicant's co-accused in relation to the rodeo episode, Tristan Bennett, had not said that the applicant had done anything in the vicinity of the bridge, but admitted that it was he, not the applicant, who assaulted Heyden at that point. The respondent had ignored that fact and had selected fragments that supported its case. None of the witnesses had given evidence under oath and their versions differed. The tribunal should not rely on untested material.
In relation to the 2011 events, it was a serious misdescription to say, as the respondent did, that the applicant had been involved in an altercation. He had been accosted by two persons and physically attacked, and did not participate in an argument. As a result he was acquitted of manslaughter.
That incident was referred to in both of his licence renewal applications. He had disclosed what he thought he had to disclose, and had clearly not intended to deceive. As his licence had been renewed on both occasions, it is apparent that the Commissioner had no issue over the matter at that time.
He had no knowledge of the affray that resulted in a participant suffering a broken collarbone and had never been asked about it by the police. It formed part of the confusion of facts that relied only on the statement of Rory Stevens, a young man aged 17, which was in conflict with other statements. The police did not record any involvement by the applicant.
Hayden **** had contacted the applicant via Facebook, as the record of the messages showed, but he had said it was the other way around. Consequently Hayden 's evidence was not credible. The respondent said that the applicant had attended at Hayden's mother's house at 5:30 am, but it was actually Hayden's house as well. His injuries had been caused by the applicant's co-accused. There was no clash outside the house.
The applicant was not habitually engaged in assault incidents. There were two matters in the whole of his life, one of which was by way of self-defence, and the other consisting of a punch delivered following an insult to a woman present.

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 revocation of a licence or permit: s 75(1)(c). 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.
In this case the respondent does not contend that the applicant is not a fit and proper person to hold a firearms licence, but instead submits that it is not the public interest for him to do so on the basis of two matters, his non-compliance with participation and notification requirements, and the fact that he has come to police notice a number of times in relation to violent assault incidents.

Non-compliance with participation and notification requirements

Clause 15(1) of the Regulation prescribes that if a licensee's reason for possessing a firearm can no longer be established by the licensee, the licensee must within 14 days after becoming aware of no longer having the stated reason, notify the Commissioner of that fact in writing or in such other manner as may be approved.
Further, cl 29 of the Regulation provides that a licence issued for sport/target shooting is subject to a condition that the licensee must comply with any applicable requirements of part 10 (Participation requirements for club members). Clause 107 provides that the holder of a licence issued for sport/target shooting must be a member of at least one approved shooting club and must, during each compliance period for the club of which the person is a member, participate in no fewer than 4 shooting activities of an approved shooting club.
SSAA records show that the applicant had failed to participate in mandatory shooting activities in connexion with his reason of sport/target shooting since 2009, and that his membership in that association expired on 30 September 2010 (exhibit R2). In addition, in his 2013 and 2018 renewal applications, he completed a declaration stating that he was able to comply with those requirements in connexion with those applications (exhibit R1, annexures 5 and 6, pp 66, 69). That was not the case, and he had failed to delete the references to sport/target shooting in his genuine reasons in section E of the renewal application forms (id. pp 65, 68).
The basic facts of this ground are not in dispute. The applicant's response was that he had been told, and was under the impression, that if a licensee had more than one reason for holding a licence, it was not necessary to keep participation details updated. He had been regularly engaging in recreational hunting and vermin control, and had letters of appreciation from primary producers for his activities in that regard. He said that if he had known the true position, he would have crossed out the reference to sport/target shooting in section E.
The public interest requires, however, that licensees be aware of, and comply with, the legislative requirements for holding a licence: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91, [4]. Relying on Todorovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192, [130], the respondent also submitted that, in particular, disregarding the requirement to support a genuine reason, especially over a period of years, is not in the public interest.
In Todorovski, however, I suggested that some latitude could be extended where a regulatory requirement is not directly related to public safety. But in that case, the licensee failed to meet the participation requirements of both his reasons and was consequently devoid of any valid reason over a period of years. That could not be overlooked, and the omission could not have been an innocent mistake. In this case, however, the applicant was still exercising his ground of recreational hunting and vermin control and has appreciative letters from the station manager of Wylarah Station and from Jackson and Margaret Hyde, of Backmede (near Casino) in that regard (exhibit A3).
Although the questions on the renewal application form appear to be perfectly clear, it could perhaps be understandable to an extent that the applicant could entertain a mistaken understanding of the complex firearms legislation. It is, indeed, not unknown for attending police to entertain, and purport to enforce, an erroneous view of firearms law: Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [69]. And presumably the present proceedings, including the loss of his licence since June 2019, will have encouraged him to pay closer attention to compliance with licence requirements, should he ever be in that position again. Consequently I do not think the evidence supports licence revocation solely on that ground. There remains, however, the matter of his involvement in incidents of violence.

Violent assault incidents

The other, and more significant, matter on which the respondent relies as establishing that it is not in the public interest for the applicant to hold a firearms licence is his involvement in certain incidents of violent assault.
The first (charge H 46507262, event E 4653579) occurred on 12 November 2011 after the applicant had spent the day consuming alcoholic refreshments at a charity fundraiser at the Kyogle Showground. On the way to visit the Exchange Hotel with a group of friends, he encountered the deceased Daryl Close with his niece Geraldine Boyd, who had between them consumed two casks of Moselle wine from 3:30 pm until late. As the applicant walked past Geraldine Boyd, she repeatedly screamed at them, "You white c**ts" and calling them "white dogs".
She had addressed the applicant and screamed at him, "Yeah, you white dog" and an argument ensued between them. "BOYD was extremely verbal and abusive", according to the fact sheet. Close then began repeatedly yelling at the applicant, "It's because I'm gay". The applicant did not know either Boyd or Close, and was not aware that Close was homosexual. Close then struck the applicant, who retaliated immediately and punched Close in the face. Close's head had jerked backwards and he stumbled two or three times before falling hard straight back, without attempting to break his fall, his head striking the cement. He did not move, but shortly afterwards regained consciousness and stood up, speaking to ambulance staff when they arrived. He stepped into the ambulance of his own accord and was taken to Kyogle hospital. He was later flown to Gold Coast Hospital in a critical condition and subsequently died. The autopsy certificate recorded the cause of death as head injury.
The applicant was charged with manslaughter over the incident but was acquitted after a jury trial. His defence was that he had acted in self-defence, which the jury apparently accepted. On the unchallenged evidence, it is clear that the applicant did not initiate an altercation, nor did he initiate physical violence. According to Mr Graham Kennett, general manager of Kyogle Council and the applicant's work supervisor, the episode had an impact on Shaun and his family, and they had been through "many challenges" as a result since then. In my view that matter, although tragic, does not on its own indicate that it would not be in the public interest for the applicant to hold a firearms licence. That appears to have been the respondent's conclusion also, as the applicant's firearms licence was returned to him after the acquittal, but with a caution for the future.
The respondent also relies on three assault incidents on 10 March 2019 in or around Kyogle Showground. The first, event E1017471 (exhibit R1, pp 26 - 27), occurred when two men were repeatedly harassed, and subsequently assaulted, by a group of 10 to 12 males who were not known to them. One of the victims suffered a split lip and a broken collarbone, requiring hospital treatment. The designated "person of interest" was Tristan Bennett, not the applicant. The applicant denies all knowledge of the incident, was not charged and was apparently never interviewed by police in connexion with it. As the victims were not from the local area and departed after receiving treatment, police were unable to follow up with any investigation.
While being interviewed by S/Cst Fahey, Rory Stephens asserted that the applicant had been involved in that episode. That allegation does not appear to have been corroborated and does not merit substantial weight. The victims could not describe their unknown assailants and the scene appears to have been one of a late-night mêlée fuelled by alcohol involving 14 or more men. It would be imprudent to give much credence to the account.
The second incident, estimated to have occurred between 3:00 and 4:00 am (event E 136503001, exhibit R1, pp 28 - 30) occurred in a group of people, most of whom knew each other. In the course of a general conversation, a young woman named Kodi Stephen made a remark to which the victim Hayden **** took exception, leading him to say, "You're a slut anyway". Thereupon the applicant said, "You should have more respect, I have three daughters. You don't treat women like that".
At that the victim admitted that he should not have said what he said, but the applicant began pushing him, then punched him was on the left side of the face. Rory Stephens stated that the applicant tackled Hayden to the ground and punched him about three times in the head. Tristan had then pulled him off Hayden and said, "Stop, it's not worth it". Thereupon one of the other men present said to Hayden, "You are best off to get going".
After looking for his wallet, Hayden left the location, again apologizing for his comment, and walked towards the Kyogle caravan park, when he saw the applicant and three other men following him. Rory Stephens reports hearing Tristan Bennett then say to the applicant, "Let's go get the prick", whereupon they started walking in the direction Hayden had taken.
This led to the third incident, also part of event E 136503001. Hayden continued walking, the applicant and the other men caught up with him. One of them, who was wearing a blue Hurley shirt (Tristan Bennett) began punching him and Hayden dropped to the ground and covered himself up to protect himself. He stated that his assailants were calling him a dog and other things. Hayden said that the applicant was also punching him, but Rory Stephens said that Tristan Bennett punched Hayden, and when he fell to the ground, both the applicant and Tristan started to kick him around the head and ribs. He does not say the applicant had also punched the victim.
The young woman who was the reluctant centre of the fracas, Kodi Stephen, stated that the applicant had berated Hayden about disrespecting women, and Hayden was telling the applicant that he was not doing that, as they were friends. "Shaun has then pushed Hayden a few times but Hayden did not push back", she said. "I stood between Shaun and Hayden and told Shaun to leave Hayden alone, I was a big girl and everything was OK as I am friends with Hayden. Things seemed to settle for a few minutes, then Shaun started at Hayden again. I again stood in between them, and Shaun has then pushed me aside and I saw Shaun hit Hayden once with his right closed fist in Hayden's jaw. I told Shaun to leave Hayden alone. Shaun then his Hayden once more with closed right fist, but I did not see where it hit Hayden. At no time did Hayden fight back. Shaun was pulled away from Hayden and I last saw Hayden walking away from the area".
At about 4:30 am that morning, Hayden unsuccessfully attempted to message the applicant, who responded to the missed calls at about 5:00 am with a series of insulting and abusive messages about needing to speak to Hayden to "sort out" about how he speaks to women. He then arrived at the house of Hayden's mother, Joanne ****, at about 5:30, telling her that he needed to speak to Hayden about how he speaks to women. Mrs **** said that her son was asleep and directed the applicant to leave her property, adding that if he did not she would call the police.
Given the inconsistencies between the various accounts, it is difficult to construct an orderly narrative of what happened that night. What does seem reasonably clear, however, is that the applicant took violent umbrage when Hayden called Kodi a slut, and despite efforts by Hayden and Kodi to placate him, he punched Hayden in the face once, and again after a few minutes.
After Hayden left the scene, the applicant joined with Tristan Bennett in a common purpose to "go get" Hayden, setting off after him and eventually catching up with him. Tristan then began punching Hayden and there is conflicting evidence as to whether the applicant did also. It does appear, however, that when Hayden fell to the ground, both men began kicking him in the head and ribs until one Christen Wimble prevailed on them to stop. Later that evening, at about 5:00 am, came the acrimonious exchange of Facebook messages laced with implied threats of violence by the applicant.
While the applicant's angry reaction to Hayden's insult to Kodi Stephen could be understandable - not a few would view it as commendable -, the remark was not accompanied with any violence or threat of violence, and provocation is not a defence to assault. The preponderance of evidence indicates that Hayden immediately retracted his comment and repeatedly apologized for it. The applicant denies that he did, but given his initial attempts to deny even touching Hayden on the occasion in question, his evidence cannot be accepted without reservation.
Further, this was not merely a spontaneous explosion of indignation. It involved multiple assaults separated by a few minutes, according to Kodi, followed by an agreement with Tristan Bennett to follow and "go get" Hayden, followed by Tristan (and perhaps the applicant) punching him, and probably both of them kicking him in the head and ribs while he lay on the ground, a vicious attack of a kind known sometimes to cause death. At the very least, the applicant made no attempt to restrain Tristan from belabouring the victim in that way. That episode was later followed by the implicitly threatening Facebook messages and the applicant's unwelcome exchange with Hayden's mother at her front door.
Those circumstances are particularly troubling in the case of an applicant who in the past unintentionally caused a man's death with a single blow, an event that caused repercussions for his family and his own life, and he must therefore have been acutely aware of the possible consequences of physical aggression. He had also been explicitly warned by the Commissioner in a letter dated 13 September 2013 that if he were again to come under adverse notice, it would be likely that his firearms licence would be revoked.
The applicant is a married man aged 38 with three children who lives with his family at Geneva, near Kyogle. In his employment with Kyogle Council, he has worked his way up from labourer to a responsible position as a crane operator. He has no record of firearms contraventions or of breaches of safety practices. He has a number of recent supportive references (exhibit A3). Jackson and Margaret Hyde commend his work keeping vermin under control on their property. The manager of Wylarah Station in similar vein declares that the applicant has always complied with their safety and other requirements and has been a key part of their vermin control program are over the last nine years. Mr Philip Taylor also appreciates the applicant's vermin and feral control on his property and speaks highly of his qualities as a community member and his support of children's activities in the area.
The favourable observations by the general manager of Kyogle Council about his work and personal qualities have already been noted. Mr Joshua Lock, manager of Roseberry Farms, regards the applicant's knowledge of firearms safety as impeccable and says that for vermin control on the properties he manages, he would not use anyone else. "I am more than aware", he writes, "of Shaun's history with the courts but that is no reflection of his respect for safety of firearms and the dangers associated responsibilities that goes with owning one. In my belief he is a very capable gun owner".
A person with such a background would not normally give rise to any public safety or public interest concerns. But the events of 10 March 2019 do raise concerns and are too recent to be overlooked. More time without adverse observations needs to elapse before a tribunal could conclude, consistently with Webb, that there is no real or appreciable risk involved in the applicant's possessing firearms. For the time being it is therefore not in the public interest for the applicant to hold a firearms licence, and I so find.

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: 18 May 2021

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