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[2014] NSWCATAD 117
NCAT Administrative and Equal Opportunity
2013-05-31
Original judgment source is linked above.
The Applicant's evidence 25The Applicant relies on his own evidence. He provided a written statement, attended the hearing and was cross-examined. His evidence is that he and his wife live together with their two children. He continues to see his three children from a previous marriage on a fortnightly basis and during school holidays. 26The Applicant's wife was diagnosed as suffered from depression and post natal depression and she has been prescribed medication on account of that depression. The relationship had been strained since the birth of their younger daughter. This was due to a combination of his wife's mental health and the heath of their baby. They separated in August 2011. 27In early 2010 the Applicant's wife was pregnant. The Applicant said that he noticed that she was getting more and more agitated and they were having more and more arguments. He said that he asked her get help as he was concerned about her and the baby, but she told him that he Applicant was the source of her problem. 28Following the birth of their baby it was apparent that the baby had medical problems. The Applicant said that he observed that his wife did not take that news well. She did not eat as much; she would have episodes of mood swings and would be highly confrontational with him and cold towards him. She blamed him for the baby's medical issues. Over the following months he observed that the marriage was becoming more and more strained as no one could give them the correct answer about their baby. 29In July 2011 they engaged a marriage counsellor. In August 2011 there was a temporary breakdown of the marriage when the Applicant's wife and their baby moved out of the home. The Applicant said that he maintained communication with his wife by telephone to see if she or their baby needed anything. However, he said that his wife did not want his help nor did she want him to see their baby. 30In October 2011 the Applicant became aware that his wife was intending to enter into another relationship with another person. He said that his wife's sister informed him that his wife had commenced a relationship with her sister's ex-boyfriend. That person was also the Applicant's friend. He said that he telephoned his wife and confronted her with the information but that she hung up the phone in a matter of seconds. He tried calling again but she did not answer. 31He said that he was upset, angry, felt betrayed and felt that it was the end of the relationship. He sent his wife a text message in which he wrote words to the effect that she and her sister's ex-boyfriend were both dogs and wished them well. He said that the term 'dog' is an expression that is commonly used to indicate that what had been done was wrong and showed disrespect. He denied making other attempts to contact his wife that day other than sending her a further text message indicating that he wanted some of his belongings. He denies that he made any threats to her. 32The Applicant said that when he drove into his driveway that evening, he observed that there police officers at the house. His firearms licence was suspended as a consequence of the Police serving him with the Provisional AVO. He was informed that he was under arrest and his firearms were confiscated. He was then driven to Green Valley Police Station, where he was interviewed by police. He was informed that he had been arrested because he had threatened to kill his wife and baby. 33The Applicant said that he has always denied that allegation and that they are untruths that were made by his wife when she was ill and at a very low point in their relationship. The Applicant has denied the allegations of misconducted in respect of his firearms. He denies that he ever placed a firearm to his head or any other part of his body and threatened to kill himself or anyone else. 34He appeared at Liverpool Local Court in relation to the AVO and consented to the making of interim orders, but opposed the making of final orders. 35He said that on the evening of the same day as the first AVO Court date, he received a telephone call from his wife and she was crying hysterically over the phone. He said that he hung up the phone but she called him again, asked him to take her to the mental health ward and to look after the baby. He drove her to Liverpool hospital and she was admitted immediately and stayed in hospital for 5 days. When she was discharged, she was discharged under the Applicant's care and supervision. She was subsequently diagnosed with Bipolar disorder Type II and has been prescribed with proper medication. He said that he believes that if his wife was diagnosed properly from the outset, she would have obtained the proper help and they could have avoided all this. 36The Applicant said that since she was prescribed the proper medication his wife has been well and stable, and that he has cared for her, their baby and his other children without any incident. Since that time they have reconciled their differences and have also added another child to their family. 37When the AVO matter was listed for hearing at Bankstown Local Court the Police Prosecutor informed the Court that it did not seek the final orders. The matter was dismissed without the Applicant having the opportunity to test the allegations made against him. 38The Applicant also said that he has been referred to Dr. Chai Nge, Psychologist in an effort to work on making his marriage better. Dr. Nge has prepared letters in which he responded to certain questions asked of him the Applicant's solicitor. 39The Applicant also provided a number of references in support of his application. 40The Applicant did not dispute that he had uploaded a photo to his face bookpage that showed a scene that he had created so that his wife would believe that he was burning her wedding dress. There was a caption under the photograph stating: "do you like your dress now, bitch". He said that the photo only remained for a few hours and he accepted that he expected that someone would see it and tell his wife. He said that he was upset and did it on the spur of the moment intending to make a statement - it was symbolic of burning memories. 41The Applicant's contention is that there is virtually no risk to the public in him having a firearms licence. In that regard, he submits that he has at all material times demonstrated a responsible attitude towards firearms and is well aware of the need for safety and proper security of firearms. Further, he submits that the Tribunal should not consider the events that are alleged by the Applicant's wife in isolation.
The Applicant's wife's evidence 42The Applicant's wife appeared at the hearing and was cross-examined. In her evidence she confirmed that she had provided a statement to police in October 2011 in which she had made the allegations against the Applicant. She stated that the allegations in regard to misuse of a firearm were not true and that she went to the police station to tell lies, but she is not sure why she did that. She said that she can remember which parts of her statement she had made up but her memory was poor in relation to the other parts of her statement. She has no recollection of receiving threatening texts from the Applicant. She said that a lot of the events referred to are a blur to her as she was not on medication at the time. 43The Applicant's wife was shown a photograph taken from the Applicant's facebook page which allegedly showed the Applicant standing near a fire and he appeared to be burning something white. She said that she could not recall showing the photo to a police officer or telling the officer that she believed that the Applicant was burning her wedding dress. 44She said that she still has the dress and that it is at her mother's house. She agreed that she could show it to the police. 45The Applicant's wife stated that she takes medication for her bi-polar and will continue to do so. She sees a psychiatrist every six weeks and a psychologist ten times per year. She said that she feels well, is working full time and feels that her relationship with the Applicant is the best it has ever been. 46Under cross-examination she accepted that she had lied about receiving threatening text messages and that she had lied about the Applicant's misuse of a firearm. She said that she lied about a lot of things. She said that she had told her treating physicians that she had lied about some things but had not told them about lying about the Applicant's misuse of a firearm. She said that this was because she was ashamed of what she had done.
Dr. Chai Nge 47Dr. Chai Nge is a clinical psychologist who has provided reports in relation to the Applicant. He also appeared at the hearing and was cross-examined. In his report dated 4 September 2012 he wrote: This letter is to address your request for an assessment of Mr. Tony Kavalieratos' ... suitability for a firearm license. Mr. Kavalieratos was referred by his GP Dr Mandy Mai Tran on the 21/07/2012 for assessment of depression and adjustment disorder in the context of marital distress. I first assessed Mr. Kavalieratos on the 15/08/2011. My last session with him was on the 02/04/2012 prior to the last visit on the 04/09/2012 in relation to the gun license matter. I contacted [the Applicant's wife] on the 04/09/2012 to confirm that she was aware of his intention of re-acquiring his gun license. [The Applicant's wife] reported that she was aware of Mr. Kavalieratos' application for a firearm license and she has no objection to this. She reported that their relationship has significantly improved and she does not have any concerns for her or her children's safety. In my treatment of Mr. Kavalieratos he has shown no signs of aggressive behaviour/violence or psychiatric disorder. In addressing the specific points of your letter:
Submissions 50The Applicant submits that with the exception of the allegations made by his wife, there is no evidence that he has a history of violence towards any person, and in fact has cooperated with Police in his personal matters or other civil matters without incident. There is no evidence of any follow ups by Police or of their concerns that the Applicant might harm himself or his family. He submits that there is no evidence that his current way of living or domestic circumstance give reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms. 51The Applicant contends that he is a fit and proper person to hold a licence and the general community can place their trust in him to have possession of a firearm without danger to the public safety or peace. Accordingly, it is his submission that the Tribunal should find that there is virtually no risk associated with granting him access to his firearms, and it follows that his licence should be granted. 52Mr Zoppo, solicitor for the Respondent, submitted that the Tribunal needs to ensure that the objects of the Act are satisfied. He submitted that the test from Ward should be applied i.e. the Tribunal must be satisfied that there would be virtually no risk to public safety if the Applicant were given access to a firearm. 53There is no dispute that the Applicant has no adverse criminal history. The Respondent concedes that if the Applicant has an almost unblemished record with respect to the possession and use of firearms, however he is concerned about the Applicant's lack of acceptance of responsibility. It is submitted that the allegations have a ring of truth and should not be disregarded. 54The Respondent relies on the seriousness of the allegations made by the Applicant's wife, the content of the text messages sent from the Applicant to his wife and the content of the Applicant's Facebook page. Mr Zoppo submitted that the content of the phone records and Facebook page support the version of events presented in the statement that the Applicant's wife gave to Officer Hillery. He argued that the content of the phone records and Facebook page demonstrate the Applicant's anger and frustration and are consistent with the alleged conduct from the previous day. 55He submits that the Applicant expressed his anger is very overt terms and involves some form of threat. 56Mr Zoppo says that in the absence of any explanation as to why the Applicant's wife would have gone to the police station to tell lies about the Applicant, the Tribunal should find that she told the truth to Officer Hillery. He submits that her mental health issues do not explain three pages of allegations and that she is now presenting a different version as she is trying to assist the Applicant with respect to his firearm licence. 57The Respondent contends that the Applicant only accepts responsibility for his conduct where it is supported by documentary evidence. The Tribunal should be concerned about the Applicant's lack of acceptance of responsibility. 58Mr Zoppo submitted that Dr Nge had accepted what the Applicant had told him and did not take into account what the Applicant's wife had alleged and that his opinion could be different if the allegations were true. 59Dr Nge states the Applicant has no observable symptoms of psychiatric psychology to suggest that he may pose a risk to the public. However in the Commissioner's submission, that opinion carries little weight in circumstances where the Doctor has failed to provide an opinion accepting the circumstances as set out by the Applicant's wife. 60Mr Zoppo submitted that the allegations made by the Applicant's wife are very serious. If the Tribunal accepts that the statement of the Applicant's wife is a truthful account of what occurred, then Dr Nge's has not provided the evidence that the Tribunal requires to arrive at the conclusion of "virtually no risk". 61Accordingly, the Commissioner submits that the correct and preferable decision in this matter is to confirm the determination.
Discussion 62I agree with the submission that for the Applicant to succeed the Tribunal must be satisfied that there would be virtually no risk to public safety if he were given access to a firearm: Ward v Commissioner of Police Commissioner of Police, New South Wales Police Service. 63This assessment of risk is dependent on the view taken in regard to the allegations made by the Applicant's wife in her statement to police in October 2011. It is not in dispute that the Applicant's wife has been diagnosed with Bipolar Stage II, for which she is currently receiving treatment from a psychiatrist and psychologist. Nor is it in dispute that this disorder had not been diagnosed until she was admitted was admitted to Liverpool Hospital shortly after she gave her statement. 64It is also common ground that the Applicant and his wife have apparently resolved their differences and have remained in a stable relationship for the period since her diagnosis. 65The Applicant contends that the allegations were false. The Respondent accepts that it is possible the allegations were false but contends that it should not be assumed that they were false simply because of her mental condition at the time. I agree with the Respondent in that regard. It is possible the allegations were false but it is also possible that, at least to some degree, the Applicant's wife was truthful in her allegations. 66The Applicant's wife gave evidence at the hearing and asserted that she lied in her statement. She did not have any recollection of much of the content of her statement but denied some other aspects of it. She asserted that she knows which parts of the statement were false. In my view, little weight can be given to the evidence she gave at the hearing because of the period that has passed since she gave her statement, he poor memory in relation to the content of her statement and her mental state at the time she gave the statement. 67In relation to the firearms incident she stated: In January or February 2011 Tony and I started to argue. He was packing his possessions as though he was going to leave. Tony went into the garage and opened his gun safe. He took his handgun out and walked into the bedroom. I followed him and was standing in the doorway of our bedroom with Tony was inside. He continued to pack his property into a bag. I had our daughter ... in my hands; he threw a box of perfume at me and told me to leave the room. I stayed there and he took the gun and put it to his head. He had his finger on the trigger and he told me again to leave the room, shut the door and let him do it. 68That incident is said to have taken place within weeks of the birth of their daughter. At that time, the Applicant's wife was suffering from post natal depression and she was seriously concerned about the baby's health. There is nothing to suggest that she raised the incident with police or or anyone else or took any other action at that time. She did not raise it with police until some eight or nine months later. 69However, there is enough evidence of event that surrounded her attendance at the police station and the giving of the statement to Officer Hillery for me to be satisfied that she was clearly distressed at the time. It seems that her attendance at the police station was prompted by the Applicant confronting her in relation to the information he had received from her sister in regard to her new partner. The phone records, Facebook entry and alleged threats are to be placed in that context. 70The evidence from Officer Hillery is that he saw the text messages and Facebook page. I accept that evidence. In my view the Applicant's conduct is attributable to his anger and frustration and sense of betrayal from learning that his wife had commenced a relationship with his friend. In my view it is probable that his actions at that time were intended to convey his reaction to the news to his wife. It is probably that he intended to upset her. 71While it appears that the Applicant's conduct towards his wife was socially unacceptable, there is no evidence to suggest that he has ever engaged in violent physical conduct. Nevertheless, I am satisfied that his sustained verbal aggression caused her significant distress. 72I note the Respondent's concerns that the Applicant has not accepted responsibility for his conduct towards his wife. While I agree that he has continued to deny that his wife's allegations are true, I am also satisfied that the Applicant has taken some steps to address his behaviour and has received counselling and psychological assistance. 73It is now three and a half years since the conduct in relation to the use of his firearms is alleged to have occurred. It is almost three years since the threats are alleged to have been made. There is no evidence to suggest that his aggressive conduct has continued over those three years. 74In the circumstances, I am satisfied that sufficient time has passed since these incidents to be comfortable that there is virtually no risk to the public, including risk to the Applicant as a member of the public, if he were to be granted access to firearms at this time. 75This should not be seen as condoning the Applicant's conduct towards his wife. 76However, on the material before me, it is my view that the correct and preferable decision is that the decision under review should be set aside. In its place the decision should be made that the application for a firearms licence should be granted.
Orders (1)The decision under review is set aside. (2)The decision made that the application is granted.
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: 20 August 2014
Kavalieratos
Commissioner of Police, NSW Police Force
The Law 9The general principles of the Act are set out in section 3 of the Act: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) ... 10Section 11(4) provides that a licence must not be issued if the Commissioner (or the Tribunal on review) has reasonable cause to believe the Applicant may not personally exercise continuous and responsible control over firearms because of the Applicant's way of living or domestic circumstances. 11Section 11(7) provides that a licence application may be refused if the Commissioner (or Tribunal on review) considers that the issue of a licence would be contrary to the public interest. 12The term 'public interest' is not defined in the Act. Its meaning and the considerations that are relevant to take into account when revoking a licence because it is not in the public interest, must be ascertained by examining the context in which it appears and the scope and purpose of the Act. 13In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel of the ADT made the following observations about the meaning of 'public interest': 25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 14In Ward v Commissioner of Police Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [27] - [28] the Tribunal 27 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Ward is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction for assault. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms. 28 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. 15Similarly, where the reason for refusal is the public interest, the Tribunal must assess the effect on the public interest if the person were to hold a licence. Whether that effect justifies refusal will depend on the nature of the public interest and the degree to which it is affected by the person being permitted to hold a licence. 16In this case the Commissioner submits that the licence should not be granted because of the Applicant's alleged conduct towards his wife, his failure to accept responsibility for his conduct and his lack of remorse.