Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 316
Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
Source
Original judgment source is linked above.
Catchwords
Australian Broadcasting Tribunal v Bond [1990] HCA 35, (1990) 170 CLR 321Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50Director-General, Transport NSW v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Lawson v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 308McDonald v Director-General, Social Services (1984) FCA 57, (1984) 1 FCR 354Manning v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 111Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206McKenzie v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 256Meachem v Commissioner of Police, New South Wales Police Force [2020] NSWCATAP 107
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCAT
Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (20 paragraphs)
[1]
epartment of Transport [2002] NSWADT 10;
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28;
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110.
Texts Cited: None cited
Category: Principal judgment
Parties: Mr Darren Russell Kennedy (Applicant)
[2]
Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Counsel:
Mr A Joseph (Applicant)
Solicitors:
Puleo Lawyers (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 2024/00158194
Publication restriction: See above
[3]
reasons for decision
The applicant Mr Darren Russell Kennedy applied to this tribunal on 21 April 2024 for review of a decision by the respondent Commissioner on 9 April 2024 to revoke his category AB firearms licence.
The licence had been issued on 2 January 2019 and was to expire on 22 February 2024, but was revoked on 18 January 2024 (exhibit R1, pp 93 - 95). The revocation was affirmed following an internal review on 9 April 2024 (id., 96 - 99).
The applicant is a man aged 44 who had been authorized for firearms for approximately 4 years before his licence was suspended on 25 September 2023. Between 1998 and 2005 he had been charged with several counts of possessing prohibited drugs and one of destroying or damaging property to a value of less than $2000.
On 5 July 2023 he contacted police in relation to a domestic dispute to seek advice on whether he could evict his then partner (as she is neither a party to, nor a witness in, these proceedings, she will be identified only by the initials FQ; she also uses an anglicized version of her name, which may be referred to by the initials TC). It was alleged that he had collected her from the airport on her return from overseas and had been involved in a protracted argument with her on the drive home. He told her to leave his residence, which she declined to do. Police believed that he had become aware that FQ was pregnant after contacting police and had indicated that police presence was no longer required. Because of the domestic nature of the report, however, police attended his residence on 7 July 2023 and after a discussion with both parties took possession of his firearms.
On 10 September 2023 he attended Toronto police station where he spoke to an officer in relation to a number of allegations made against him. It was alleged that on 5 July 2023 in the course of the above dispute he had said to her words to the effect of "if you dare take half of my property I am going to shoot you in the head with my firearm and if you don't believe me I have a friend who fixed my car and charged him $1000 which was more than he should have, so I poisoned his two dogs and killed them - you had better believe I'll find you and shoot you in the head". It was also alleged that a tracking device had been found in a compartment in the rear of FQ's vehicle, which the applicant had borrowed while she was overseas.
He was charged on 3 October 2023 with stalk/intimidate/intend fear or harm and made subject to a provisional domestic violence order (PAVO), but the charge was withdrawn as FQ did not attend the hearing. The PAVO was also withdrawn. On 9 February 2024 he requested an internal review of the revocation decision, which affirmed the original decision. He applied for review in this tribunal on 29 April 2024 and the matter came on for hearing on 29 October 2024.
[4]
Applicable legislation
Section 24(2)(a) of the Firearms Act provides that a licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind. 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", including by reason of his domestic circumstances (s 11(4)(a)).
Section 24(2)(d) states that a licence may be revoked "for any other reason prescribed by the regulations". Clause 20 specifies that "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".
Further, s 24(2)(c) provides that a licence may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". The issue in this application is thus whether the applicant is no longer a fit and proper person to hold a licence, or whether it would not be in the public interest for the licensee to continue to hold a licence, or both.
It is not disputed between the parties that a decision by this tribunal to set aside the reviewable decision would not entitle the applicant to have his licence restored, as the licence has expired in any event. The applicant does not have a new licence application pending at this stage, but wished to proceed with the review on the basis that a favourable decision should include a direction, or at least a recommendation, that the respondent unconditionally grant any new application made by the applicant for an AB licence. The respondent submitted that the tribunal has no jurisdiction to make such an order, its powers on review being limited to those contained in s 63(3) of the Administrative Decisions Review Act 1997 (ADR Act). The applicant contended that in any event a decision setting aside the revocation would have utility in that it could be taken into account by the Commissioner, or on review by this tribunal, if a licence application were made in the future.
[5]
The evidence
The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 documents (exhibits R1 and R2} and on cross-examination of the applicant. Part of exhibit R2 is a signed statement to police by FQ dated 3 September 2023 in connexion with the stalking and intimidating charge which was to have been heard at Cessnock Local Court on 18 March 2024, but which in the event was withdrawn when she declined to give evidence.
Mr Joseph on behalf of the applicant pointed out that exhibit R2 had been served on his client only two working days before the present hearing. He submitted that it was not practicable to seek FQ's attendance for cross-examination in that time, partly because the applicant did not know where to find FQ. Before the hearing the applicant had made it known to the respondent that if the respondent intended to rely on the statement as evidence of the truth of the facts of the alleged incidents, its tender would be objected to. I admitted the document into evidence over objection, on the basis that the fact that it was untested, whereas the applicant's evidence was tested, did not make it inadmissible but would affect the weight to be given to it. As it contains detailed references to incidents of central importance in this application, it is appropriate to summarize its contents here.
[6]
FQ's statement of 3 September 2023
The statement declared that FQ is 39 years of age and met the applicant on 26 March 2022. About a week later they entered into a relationship and on 2 June 2022 she moved into his residence at Laguna as the rent on her previous residence had been increased. The applicant had invited her to move into his address after she had told him that she would have to return to Sydney.
From the time she had moved in with Darren, he had been controlling aspects of her life, reading her telephone messages as he had her telephone code. He had told her not to see or contact previous friends.
On 3 June 2023 she travelled overseas because of a family emergency. Just before returning to Australia, she contacted the applicant asking him to book a doctor's appointment as she suspected she was pregnant and was feeling very sick. She arrived back in Australia on the morning of 5 July 2023 and the applicant collected her from the airport, driving her back to the residence at Laguna. Because of his behaviour at the airport, she asked him to drive her to her sister's place, but he continued to drive her to their residence. On the drive from the airport they argued the whole time.
When they arrived home, he told her to get the f*** out because of the argument and said "if you dare take half my property I am going to shoot you in the head with my firearm and if you don't believe me I have a friend who fixed by car and charged me $1000 which was more than he should have, so I poisoned his two dogs and killed them - so you better believe I'll find you and shoot you in the head". She was terrified at this threat. There had never been any talk of her taking his property, so she did not know where it came from. She felt incredibly scared because she knew he had six or eight firearms, and a taser that she had seen him operating. The last time she saw it was about April 2023 at his residence. It was black and made a loud ticking sound when operated and she could see it sparking.
She told him that she had a doctor's appointment that afternoon and was exhausted, so she could not immediately leave. She asked him where he booked the appointment and he said "F*** off, I'm not helping you". She told him she did not feel well and needed to know where the appointment had been booked, but he continued to refuse to tell her. About 20 minutes later he said that the appointment was in Kurri Kurri. As she prepared to drive to the appointment, he told her not to return.
[7]
Darren Russell Kennedy
The applicant's signed statement dated 4 September 2024 (exhibit A1) begins by outlining his background, including that he has qualified as a baker and was awarded the Master Baker of the Year award by the Baking Association of Australia. In 2007 he bought a retail and wholesale bakery in West Pymble which he operated until 2022, after which he began operating as an AirBNB host. His rating is 4.91 out of 5 stars. In July 2023 he began working as a TAFE teacher at the Hamilton campus in Newcastle, teaching an average of two or three days a week, including teaching certificate III in breadmaking. Also from December 2022 he began a casual position to work at a local café as a baker in Laguna, and still works there currently.
He applied for a firearms licence in November 2018 as he was moving to a rural property and thought it would be a good idea so that he could undertake recreational shooting. He was successful in obtaining a category AB licence and thereafter purchased six long arms of various types. They were always kept in his firearms safe in his house, which was always kept locked. At no time before July 2023 did he have any problems with his licence, including following the police inspection of the safe after the July 2022 floods.
He met FQ in March 2022 and they formed an intimate relationship shortly thereafter. She moved into his property in June 2022. A couple of months after she moved in, he noticed that FQ would lose her temper easily, and from that it progressed, such that she would lose her temper with him. Over a period she began to be abusive towards him, calling him names. In December 2022, after attempting to set boundaries for abuse, that happened again, and he told her that he wanted her to leave. She left but they made up and she moved back in after a couple of days. In March 2023 she was again abusive and he asked her to leave. She did so, but he then agreed to allow her to come back again.
In early June 2023, FQ travelled to Jordan to deal with family matters. On her return on 5 July 2023, he collected her from the airport. She was upset with him the whole way back from the airport, calling him names. She abused him all the way home and also punched him in the ribs. About 5 km from the property she pulled the handbrake up suddenly, causing the car to spin and go on the opposite side of the road. At that point he got out of the car and walked the last 5 km back to the property. When he arrived home the abuse continued. He told her she had to leave, as he could not put up with that behaviour, calling him names and then that escalated to physical violence. She had told him she was feeling unwell and went to a doctor's appointment. He then called the police for advice.
[8]
Confidential evidence
Following the conclusion of the open hearing, a confidential hearing was held for the purpose of receiving certain confidential evidence and submissions relating to it.
[Not for publication]
[Not for publication]
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[9]
Applicant's submissions
In his written submissions the applicant inter alia pointed out that notwithstanding his previous convictions (all dating back to 2005 or earlier), he was successful in obtaining a firearms licence on or about 2 January 2019 and complied with the terms of that licence until its revocation. He maintains that he did not threaten FQ in the manner alleged, or otherwise. After the drive home from the airport on 5 July 2023 in which she was aggressive towards him, it was the applicant himself who contacted the police seeking assistance. He surrendered his firearms pursuant to police directions on the basis of his own complaint, not of any complaint made by FQ. He denies illegally trying to use a tracker to follow FQ.
Notwithstanding the withdrawal of the PAVO and the stalking/intimidating charge, it is the allegations underlying those charges that are nonetheless relied on as the basis for affirming the original decision, as well as the applicant's "domestic circumstances" being a cause for concern. Importantly for this application, the internal review decision notes that at some undefined future date, and if the applicant can demonstrate that there are no longer concerns in relation to public safety, he may be able successfully to apply for a licence. It is therefore not clear whether the applicant might need to wait a year, two years or five years before he might successfully reapply. Considering that position, if the applicant wished to obtain a further licence in the near future, the decision to revoke must be set aside.
The internal review decision helpfully refers to tribunal decisions setting out various principles relevant to determining an application such as the present one. They include Manning v Commissioner of Police [2020] NSWCAT 111 and Lawson v Commissioner of Police [2023] NSWCATAD 308. Clearly one main factual issue to be determined is whether the applicant did, in fact, make the threats to his ex-partner as alleged in the original revocation decision and the internal review session. The applicant emphatically denies doing so.
If the respondent relies on allegations of threats of domestic violence, then the respondent must adduce some probative evidence of those threats, proven on the balance of probabilities: Manning, [33]. The applicant accepts that the mere fact of the withdrawal of the stalking charge and the IAVO is not determinative of the factual issue. It is relevant, however, as is the tone of the ongoing communications from the applicant's ex-partner to him. There is no suggestion of any concern for her safety and those communications. Further, the tone of the communications and the fact that she is choosing to communicate with the applicant is not consistent with the types of threats that are alleged to have been made in the first place.
[10]
Respondent's submissions
In written submissions (exhibit R3) the respondent advanced three main bases for upholding the revocation decision:
the applicant was charged with "stalk/intimidate intend fear physical harm" on 3 October 2024;
there had been a number of domestic incidents involving FQ, the applicant's ex-partner; and
the applicant's domestic circumstances were such that the tribunal would be satisfied that it is not currently in the public interest for the applicant to hold a firearms licence and the applicant was not a fit and proper person to hold a licence.
After setting out the background of the application and the applicable law, the respondent then contended that the events of 2023 gave cause to find that the applicant is not a fit and proper person to hold a licence. On multiple occasions he and his former partner were involved in domestic incidents that would be concerning to the tribunal when determining whether to affirm the decision to revoke the applicant's licence. The tribunal would accept contemporaneous police event reports showing that he threatened to harm FQ on 5 July 2023, saying "if you dare take half my property going to shoot you in the head with my firearm… You better believe I'll find you and shoot you in the head".
Police held sufficient fears for FQ's safety that they charged the applicant with stalking or intimidating, the charge being withdrawn when FQ elected not to give evidence. The tribunal is not concerned with whether a conviction has been recorded, but rather looks to the conduct of an applicant in assessing fitness and propriety or the public interest. Noting the substantial material before the tribunal in relation to the events of 2023 which led to the applicant being charged, the respondent contended that the tribunal would be satisfied that the conduct occurred and on that basis that the applicant is not fit and proper to hold a licence. Further, the applicant continues to deny any wrongdoing in relation to the domestic incidents and has clearly not accepted responsibility for his role in the relationship. That would be of concern to the tribunal in assessing fitness and propriety.
Nor was it in the public interest for the applicant to hold a firearms licence. The events of 2023 involving the applicant and FQ are concerning when assessing whether it is in the public interest for him to hold a licence. The contemporaneous reports in police event entries lead to the conclusion that the applicant made the threat to harm FQ on 5 July 2023. Police held sufficient fears for her safety to charge the applicant with the stalking/intimidating offence.
[11]
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.
[12]
Chronology
It may be convenient to provide an outline of the main events leading to this application:
The applicant was authorized to possess and use firearms from 2 January 2019.
On two occasions in 1998 and 1999, and again in 2005, he was charged with cannabis possession offences.
On 4 November 2003, he was charged with intentionally or recklessly destroying or damaging property after he smashed the plate glass window of a store and threatened to assault the owners, while highly intoxicated (exhibit R1, pp 72 - 73). He later apologized to the owner, Mr Testore, and was reconciled with him.
In early June 2022 the applicant's partner at the time, FQ, moved in with him.
On 5 July 2023, the applicant called police after asking FQ to leave his premises and she had refused to do so (id., 38 - 42, event E 92985820). On learning that FQ was pregnant, "The VIC [the applicant] was understanding and called police to state that he no longer needed police" (id., 39).
On 7 July 2023 the applicant called police to make an allegation of assault against FQ. The police attended the premises and impounded his six firearms for a 28-day period pursuant to domestic violence seizure requirements (id., 40).
On 21 July 2023 FQ telephoned Cessnock police and informed them that the applicant had held a firearm to her and threatened to shoot her (id., 47, event E 78831743). S/Const Monique Tanner noted on 23 July that there was limited information provided in that narrative and she had been unable to determine when such threats were made, whether they were prior or post the police seizing his firearms. She was unable to determine if the applicant had access to other firearms (id., 41).
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On 3 September 2023, FQ attended Wyong police station to make a written statement (id., 46 - 48) in which she detailed inter alia the episode after the applicant had collected her from the airport and in the course of which he had allegedly made the threats set out above. She left him on 8 July 2023 and moved into separate accommodation.
Since she moved out the parties had been in regular text and telephone contact. On 3 September 2023 there was an incident in which the applicant allegedly blew cigarette smoke at FQ when she was sorting through property in the applicant's vehicle by arrangement with him to retrieve her own belongings. This occurred in the Coles car park at Wyong. He admitted smoking despite her expressed wishes but denied blowing smoke at her. The applicant told police that he was trying to be civil during the separation and birth of the child, but she was the one not being civil. He said that in late August, they had met in person and she made a comment to him similar to that she would do and say what she could to prevent him having anything to do with the child (id., 48).
[13]
Fit and proper person
The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 24(2)(c) creates a discretionary power to revoke a firearms licence "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence".
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.
[14]
Prior record
The applicant has not had an unblemished history. In January 1996 and August 1999, he was charged with cannabis possession, and again in August 2005. On 4 November 2003 he was charged with malicious damage after breaking the window of a store and threatening the owners while highly intoxicated. On 1 December 2003 he was arrested for failing to appear at the hearing for those offences and was charged with the warrant for his arrest. He later apologized for his shameful behaviour to the store's owner, Mr Testore, and was reconciled with him. He has incurred no further criminal charges since then, apart from the withdrawn stalk/intimidate matter described below.
Between 1998 and 2017 he accumulated a substantial number of traffic violations, mainly for speeding, but also one low-range PCA. His licence was marked for suspension on several occasions, with good behaviour bonds being implemented on occasion (id., 8 - 11). He has had no infringements of any kind in the last seven years.
On numerous occasions the tribunal has held that repeated infringements of traffic laws and regulations designed to ensure public safety can indicate a disregard for public safety as well as the safety of the person concerned. Thus in McKenzie v Commissioner of Police [2023] NSWCATAD 256, [46], Ransome PM in a case involving numerous traffic violations stated that "looking at Mr McKenzie's conduct as a whole, he has demonstrated a disregard for the law and for a regulatory scheme which is designed to protect public safety".
The applicant's record includes a significant number of non-minor infringements. Nevertheless, given that he has had no involvement with the criminal justice system for nearly 2 decades, and no traffic infringements of any kind in seven years, his prior history is not such as necessarily to preclude his holding a firearms licence. The law's central concern is public safety, and applicants are not required to have led otherwise blameless lives. As Mr Joseph pointed out, his record did not prevent his being issued with a licence on 2 January 2019. The incident on 5 July 2023 and its sequelae are of decisive importance, however.
[15]
Incident of 5 July 2023
This episode began with a report to police by the applicant, not by FQ. He telephoned Cessnock police to say he was "having issues with his partner" FQ and "wishes to speak with police. [FQ] was refusing to leave the address" (id., 38). He was "asking for assistance to have [FQ] removed and de-escalate the situation. During their argument [FQ] disclosed that she was pregnant and had been struggling with feeling very sick in the recent days. The [applicant] was understanding and called police to state he no longer needed police" (id., 39).
On 7 July 2023 the applicant again called police, to make an allegation of assault against FQ. That day police (including S/Const Monique Tanner) attended the address and spoke to both parties: "[FQ] was in bed at the time and stated she was struggling with the pregnancy making her feel sick and she believed [the applicant] was not understanding of how she felt and this was causing her to argue with him" (id., 40). The applicant explained he was attempting to communicate with her but felt their relationship was near ending because of the way she felt towards him and was acting towards him. He said they were intending on moving closer to family for support and to be closer to resources due to their current address being very remote and her requiring to attend doctors that morning because of her level of sickness.
It appears that page 2 of S/Const Tanner's statement is missing (exhibit R2, pp 2 -3) and from the context it seems that may have been the part where the applicant said FQ had assaulted him. That would explain why police had then proceeded to follow domestic violence procedures and take possession of the applicant's firearms, as according to the evidence before the tribunal there had not so far been any record of allegations of violence.
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On 3 September 2023, FQ attended Wyong police station to make a written statement in which she detailed the episode (id., 46 - 48, exhibit R2, 10 - 12). She described how the applicant had collected her from the airport on the morning of 5 July 2023 and had driven her back to their residence at Laguna. "Due to his behaviour at the airport, I asked him to drive me to my sister's place, however he continued to drive me to our residence. On the drive back we argued the entire time".
[16]
Other incidents
The incident in the Coles car park at Wyong on 3 September 2023 involved the applicant allegedly blowing cigarette smoke at FQ when she was sorting through property in his vehicle to retrieve her own belongings. The applicant told police he was trying to be civil during the separation and the birth of the child, but she was the one being uncivil. He said that in late August they had met in person and she had made a comment to him to the effect that she would do and say whatever she could to prevent him from having anything to do with the child. At the hearing the applicant admitted that he had lit a cigarette after FQ had explicitly asked him not to because of her pregnant state, but denied blowing smoke at her.
On 8 September 2023, FQ attended Green Valley police station after finding what she believed was a tracking device in the boot of her car. The applicant was the only other person who had access to the vehicle. At the hearing the applicant agreed that there was a tracking device on the vehicle, but said the reason was that it was a rare and valuable model and FQ had wanted to have a tracking device in it to facilitate recovery of the vehicle if it were ever stolen. That explanation was not challenged.
The 3 September and 8 September 2023 incidents were the basis for the charge of stalking and intimidation brought against the applicant. The applicant declined on 13 March 2024 to give evidence at the hearing on 18 March 2024, saying she was unfit to attend. It does not appear that any application was made for an adjournment. In her 13 March email to S/Const Tanner FQ also asked that conditions 2 and 8 be removed from the AVO. These were the conditions that prohibited the applicant from approaching FQ or entering any premises occupied by her. The stalking/intimidation charge was dismissed and the PAVO was revoked.
The applicant's domestic relationship with FQ that was the setting for the incidents and allegations described above has ended. The applicant has had no personal contact with FQ since approximately 11 September 2023, does not return her texts or messages and has no desire to have anything to do with her. He would be interested in coming to some arrangement enabling him to be involved in the child's life, but that would be contingent on there being evidence of paternity, as to which he has doubts. There does not appear to have been any claim for child support. For her part, she does not appear to regard the applicant as a threat to her safety, for as was noted above she took the initiative to ask on 13 March 2024 that conditions 2 and 8 be removed from the then PAVO. The applicant's domestic arrangements thus present no cause for concern.
[17]
Public interest
The other ground on which the respondent argues for licence revocation is that it is not in the public interest for the applicant to continue to hold a licence, within the meaning of s 24(2)(d) and cl 20.
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.
In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].
Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]).
[18]
Conclusion
For the reasons given above I have concluded that the applicant is a fit and proper person to be entrusted with the possession and use of firearms. I have also concluded that it would not be contrary to the public interest for him to do so. The decision under review must be set aside.
[19]
Orders
1. Decision under review set aside.
Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibit CR4, or matters contained in the Confidential Material and confidential exhibit CR2 is prohibited.
Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibit CR4, or matters contained in the Confidential Material and confidential exhibit CR4, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.
Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.
[20]
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: 15 November 2024
Parties
Applicant/Plaintiff:
Kennedy
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Legislation Cited (4)
(ADR Act) Civil and Administrative Tribunal Act 2013(NSW)
At the doctor's consultation it was confirmed that she was eight weeks pregnant. She returned home to the applicant and told him she was pregnant and that she needed to recover before she could find somewhere else to go. He accepted that, but did not assist her any further, even when she was throwing up and in pain from the pregnancy.
On Friday 7 July 2023 she had contacted a hotline regarding whether she needed to go to hospital or a doctor. The hotline advised her to go to the hospital emergency department. She messaged the applicant and asked him to take her to Cessnock Hospital, which he did. On 8 July she decided to leave him and moved into a family member's residence for a short time before finding alternative accommodation on the Central Coast. Since then she has been in contact with the applicant mostly via telephone and text.
On 3 September 2023 she received a text from Darren asking if she wanted to meet him so that he could return some of her belongings. He said he was free after 1 pm. She replied that she could meet him at Wyong at 2 pm, and they met around the corner of Wyong Plaza. She began pulling some of her belongings from his car, but some of it was not hers so she started going through it, trying to sort out her belongings. The applicant stood to the side and did not assist her. She asked him to give her some space but he refused to move.
She decided to move to the other side of the car to get some of her other belongings more easily. He followed and started rolling a cigarette. She asked him not to smoke near her as she was pregnant. He ignored her and began blowing smoke in her face, while following her around the car. Because of this incident she became upset and decided to attend Wyong police station, where she provided the current statement. Her main worry was that she knew he had firearms and other illegal weapons and that he might hurt her child to get to her.
The applicant regularly videoed her on his telephone and while recording would accuse her of assaulting him. She had never actually assaulted him and believed that he was trying to frame her.
He noted that there was no detail in the documents of the assault report that he made. He had called Cessnock police and asked for advice on whether he had the right to ask FQ to leave and whether she had to leave immediately if he told her to do so. The officer he spoke to asked how long she had been living with her, which he estimated at one year. The officer replied that she had the right to stay, because of the time she had lived at the residence. He did not directly ask for assistance to remove FQ from the property as stated in the police report, as he had gained the knowledge that he was unable to do so. The officer he spoke to then asked why he wanted to ask her to leave the residence, and he had replied "because she has hit me". The officer asked for further details and he said that he had been punched in the ribs while driving. The officer then told him that this was now a domestic violence incident, and his details must be recorded. He informed the police that as it appeared he was not allowed to ask FQ to leave, he did not require their assistance.
When FQ returned from the doctor's, she told him she was pregnant and that he was the father. The police came to the property on 7 July 2023 and because it was a potential domestic violence issue they directed him to hand over his firearms and ammunition, which he promptly did. He was told he could apply to retrieve the firearms after 28 days.
On 10 July 2023, FQ ended up going back to her mother's house near Liverpool. She asked that she and he move into her parents' holiday house in Wangi Wangi so she could be closer to doctors, shops and family. He began to do that and would visit her in Sydney frequently, to provide support and help. Unfortunately she continued to insult and abuse him when he would go to see her. Around late July 2023, he understood that she was applying for housing herself, as she was having problems living with her mother and they were also having problems. On or about 10 August 2023, FQ informed him that she had moved up to the Central Coast to be closer to him and they met on a couple of occasions after that so that he could return her belongings to her.
He met FQ at the car park at Coles at Wyong on 3 September 2023 to return some of her belongings. She was in a bad mood and was abusing him. He was holding his telephone in his hands, and she knocked it out of his hand over his car onto the ground. She ran around the other side of the car to seize the telephone. He was behind her and grabbed her sweater to hold her back so that he could retrieve the telephone before she did. She then grabbed him in a headlock and tried to take the phone out of his hand. He managed to get her arm off him, but she ripped his shirt and started punching him in the back of the head. He managed to extricate himself and she returned into the car, while he was recording her. After she had retrieved everything from the car, they went their separate ways and he understands that she contacted the police.
He contacted the police about retrieving his firearms, as it had been more than 28 days since he had handed them over. When he telephoned on or about 5 September, they told him they wanted to speak to him about what FQ had told them. On arriving at Toronto police station on 10 September 2023 he learned that police wanted to charge him and obtain an AVO. He declined to be formally interviewed, following legal advice, but did deny threatening FQ, as he had not done so.
After that day, FQ came up to Wangi on or about 24 September 2023, asking if he wanted to be part of the child's life, returning his e-tag and telling him she had handed the GPS tracker in his name to the police. He said at the time that he would like to be involved with the child if it was his, but did not want anything to do with her. Her parents were present during that conversation. That was the last time he saw her. The GPS tracker was placed in FQ's vehicle by him at her request, as it was a rare and valuable vehicle and if it were ever stolen, she wanted a chance to track it. He strenuously denies that he placed it in her vehicle to follow her.
He was then charged with the stalking or intimidating offence, but the charge was withdrawn, as was the PAVO, in March 2024. He had intended to defend the charge, as he denies threatening her in any way, whether with or without a firearm or otherwise. He also denies owning a taser or saying the words or making the threats alleged. Before the charges were withdrawn, he received a letter revoking his firearms licence or 18 January 2024. The licence was due to expire in February 2024, and had it not been for the events of 2023, he would have applied for a renewal of his licence before its expiry. As it was, he was precluded from doing so because it was revoked. His application for an internal review was denied.
Since 24 September 2023 he has made no attempt to contact FQ. He did return a bed of hers to her brother's house at Middleton Grange in October 2023 because she requested it. FQ had contacted him on several occasions by text and WhatsApp since 24 September 2023 and had attempted to call him on more than one occasion. On 21 March 2024 she called him from a private number and as soon as he realized it was her, he hung up. She had tried to call him back since, but he had not answered. He does not know where she lives and has not attempted to contact her. He believes FQ may have tried to contact him using a private number again on 6 August 2024 and 23 August, but he did not answer the telephone. He was still thinking about the best way to approach the issue with the child, but he was certain that he did not want any involvement with FQ and had no plans to contact her.
He would like to recover his licence as he enjoys recreational shooting he does not drink, and recreational shooting is one of the few pastimes that he enjoys where he can go with friends who don't drink. He also requires firearms to deal with problems with vermin that inevitably arise because of living on a rural property. He is fully aware that holding a licence is a privilege and responsibility and believes he has acted consistently with that in the past when he had his licence.
In relation to the incident with Nikola Testore (exhibit R1, pp 31 - 32, event E19291903, 4 November 2003), he said they lived approximately 500 m from each other and the incident occurred in 2003. In 2004 the applicant began employment at a patisserie called Lo Cantro Fine Foods, across the road from his residence and 500 m down the road from Mr Testore's residence. He was a regular customer of the patisserie where the applicant worked. While working he noticed Mr Testore walk into the shop one day. Feeling ashamed and guilty for his poor behaviour, he approached Mr Testore and extended his hand to shake Mr Testore's hand. They shook hands and the applicant apologized to him for his poor behaviour, expressed regret and asked for forgiveness. Mr Testore being the kind and understanding person he is, accepted his apology. From that day onwards he always acknowledges his presence and would say hello.
FQ had alleged that he had two large aggressive dogs. He had seen FQ at his parents' residence in Wangi walking up to the dogs and saying hello to them. To put it simply, they are guard dogs and do their job. They are not intimidating or aggressive to people that are familiar to them. His parents are also witnesses to this. He also notes that FQ regularly walked the dogs with him.
More generally, he acknowledges that he did get into trouble when he was younger, but believes he has turned his life around and has been a law-abiding citizen for the last two decades.
Cross-examined by Mr Winram, the applicant said they did not have arguments when they were living together but she would get worked up. He did not swear at her but tried to set boundaries, without becoming heated. He began recording her after the first time that she assaulted him on the way back from the airport.
FQ went overseas on 30 June 2023 to collect inheritance money, not because of a family emergency. She had been sick for a month and asked him to make the doctor's appointment for her return, but did not ask him to drive her to her sister's place. He was frustrated but did not swear at her or threaten to shoot her or say anything about firearms or poisoning of dogs. He had made the appointment but refused to drive her there. He did not say "F*** off".
She had left on 8 July and he met her in the Coles car park at Wyong, allowing her to go through the belongings in his car to retrieve her things. He did not refuse to move away, but he did smoke although she had told him not to. She had moved away, but not in order to avoid him. He had attended at the police station on 10 October when he was informed of the stalking charge and the PAVO. The charge was listed for hearing on 18 March 2024, but both the charge and the PAVO were withdrawn when she did not appear. He thinks that it was because she had been unwell. He has had no contact with FQ since 18 March 2024 when the PAVO was lifted. She had contacted him, but he had not responded.
On the question of public interest, the applicant advanced the following points:
the applicant is of generally good character and someone who works in the community, including as a TAFE teacher; there is no suggestion that he has not complied with all relevant storage and use requirements since first obtaining a licence;
considering his good character and his relatively unblemished record since 2005, he is no risk to public safety or to public confidence in the administration of the system. In fact, his adherence to procedure in relation to obtaining his licence and compliance with any direction from the police regarding his firearms and ammunition are all consistent with the maintenance of public confidence in the system of licensing;
he lives in a rural area and should be able to deal with vermin issues that inevitably arise in rural areas;
he enjoys sporting hunting activities as a pastime with friends, which is not contrary to the public interest;
the alleged threats to FQ (which do not appear to involve the actual brandishing of a firearm) are without foundation;
the applicant has made no attempt to contact his ex-partner, does not know where she lives and wishes to have nothing to do with her. These points were also advanced in relation to the fitness and propriety issue.
The applicant is in stable employment and has strong ties to his community. Apart from the September 2023 allegations, he has not been involved with the criminal justice system for nearly 2 decades. It was also to be noted that the initial report to the police in July 2023 was initiated by him. He took some pains to ensure that he acted in accordance with the law by checking with police whether he was entitled to ask his ex-partner to leave his property, and complied with the directions of police to surrender his firearms and ammunition.
He had not made any further report after the events of 3 September 2023 in the Coles car park because FQ was pregnant at the time and he did not want her to go through the stress of being charged with assault while pregnant. He did not want further conflict and was concerned that, if the child was his, and he made a further report, FQ would take steps to prevent him from seeing the child when born. He had not had any contact with FQ since 11 October 2023 and had no plans to contact her in the future.
He had made decisions that are consistent with the need to reduce any risks to a minimum. For example, calling Cessnock police station for advice on whether he could ask FQ to leave the property, after being physically assaulted by her, and returning ammunition when handing in his firearms, although he was not instructed to do so.
He had not attended Toronto police station on 10 September 2023 for the purpose of retrieving his firearms, but because he had been instructed to do so by Senior Constable Tanner of Cessnock police. He did not attend for the purpose of retrieving his firearms, as he was aware that initiating the process for retrieving them involved writing to the Commissioner, which had not been done. He was also aware that the firearms were being held at Cessnock police station, not Toronto.
He had not had any contact with FQ since before the child was born. He did not know when it was born, nor the name of the child or who the father is. He did not intend to find out if the child was his, as he had good reason to believe it was not. If FQ tried to contact him in relation to the child, he would go down the legal path of having a paternity test to begin with for confirmation. Of course, if on the off chance the child was his, he would take responsibility for it and support it when and where he could.
He acknowledges that his earlier traffic and criminal history has not been the most compliant, but he believes that more than seven years with no traffic offences whatever is a substantial amount of time, especially considering that he has driven twice the national average in the past five years (300,000 km) and has had no criminal conviction for 21 years.
The last time that he had communicated with FQ that he wanted to be part of the child's life was on 11 October 2023. Given FQ's statements and actions, including physical and verbal abuse, he had decided that there is a high chance he is not the father of her child and wanted nothing further to do with her in the future, ever. He believes that having told FQ that it was he who called the police and reported physical violence made her attitude towards him worse and sent the relationship in a downward spiral. The relationship with her was the first that he had experienced with a person of narcissistic, abusive and violent behaviour. From that relationship he had learned to recognize such behaviour for the future and knows to avoid those kinds of personality traits from now on. He had never made any threats to harm her.
In oral submissions at the hearing the applicant stressed that following the incident on the drive home from the airport it was he who had raised the matter with police and sought their advice, but because it was a domestic violence allegation the police took possession of his firearms, on 7 July 2023. FQ had made no complaint to police until after the argument in the Coles car park in the course of which she had placed him in a headlock. If he had made any threats to her, she would have raised the matter with police at the time, but she remained on the premises and lodged a complaint only on 3 September 2023 She did subsequently move out, but there was still some contact. There was no objective ground for her expressed fears.
Her text messages to him after the car park incident showed no concern about having contact with the applicant. It was she who was initiating contact with him.
Referring to Manning, Lawson and Meachem v Commissioner of Police [2020] NSWCATAP 107, the applicant submitted that there was no dispute about the relevant principles, and the major issue was whether the threats were made. The applicant bore no onus of proof on that issue and the respondent needed to adduce probative evidence. He emphatically denied making any threats, while FQ said he did, on 5 July 23, but she remained with him for 3 or 5 days and after leaving continued contact without any formal complaint to police until the Coles car park incident. She did not appear at court and the charge was withdrawn, and after that she made contact with him again.
There was no equivalence between tested and untested evidence. The respondent had to make out a case, and the probative evidence showed no threats to her. Her communications following the alleged threats were not consistent with her having a real basis for concern. On 13 March 2024 FQ had asked police to request the Local Court at the expected hearing on 18 March 2024 to remove conditions 2 and 8 from the AVO (exhibit R2, p 17). Those were provisions that directed him to stay away from her. She was thus not concerned about contact with him and actively wanted it.
The conduct of the applicant over a substantial period of time is such that it would not be in the public interest for him to hold a licence. While the applicant and FQ no longer live together, they now have a child, meaning some relationship remains. Accordingly, the concerns arising from the previous domestic history cannot be fully allayed.
While the respondent acknowledged that the applicant was not the instigator of all incidents, that was not a relevant consideration in the circumstances. And the tribunal would simply be concerned about introducing firearms again into what was clearly of volatile relationship.
The applicant's traffic record merited weight, including in light of Ransome PM's remarks in Mckenzie v Commissioner of Police [2023] NSWCATAD 256 that traffic laws and regulations are designed to ensure public safety and repeated breach of the rules would indicate a disregard for public safety as well as the safety of the person concerned. The tribunal found that the applicant had demonstrated a disregard for the law and for a regulatory scheme designed to protect public safety.
Although the applicant's traffic record has improved in recent years, the tribunal would instead place weight on the substantial period of non-compliance rather than a recent period of compliance.
In a text message the applicant had indicated and that he wanted to be part of their child's life. It was unclear when the applicant sent that message, but it would make it unclear how the applicant would propose to be involved in his child's life without any contact with FQ. The uncertainty surrounding the applicant's domestic circumstances confirms that it is not in the public interest for him to hold a firearms licence.
In oral submissions at the hearing the respondent reiterated those points and noted that FQ had made a complaint on 21 July 2023. There was no evidence that she felt safe in the applicant's presence. It is well known that domestic violence victims do not always report incidents immediately. Her statement in exhibit R2 was probative.
On 8 September 2023, FQ attended Green Valley police station after finding what she believed was a tracking device in the boot of her car (id., 49 - 50). The applicant was charged (H78257305) with stalking or intimidating intending to cause fear of physical or mental harm in respect of the events that occurred on 3 September 2023 and 8 September 2023 (id. 82). The fact sheet, however, also narrates the incident of 5 July 2023 (id., 84). The matter was set down for hearing at Cessnock Local Court on 18 March 2024 (id., 82 - 85). In the meantime the applicant's licence expired on 22 February 2024.
On 10 September 2023, the applicant attended Toronto police station at police request to discuss the allegations made by FQ. Event report E 78831743 (id., 47 - 48) states that he had contacted the police to enquire about having his firearms returned, as the 28-day period had expired. He disputes that, saying that he was aware the appropriate procedure had not been followed and he would not be able to retrieve them at that stage. He was cautioned by police (id., 48). His firearms licence was suspended on 25 September 2023 and revoked on 18 January 2024 on the basis that he had been charged with offences and was subject to a PAVO (id., 93 - 95).
The PAVO was issued on 3 October 2023 on FQ's application (id., 51 - 52, 55). Condition 2 barred the applicant from approaching FQ and condition 8 similarly excluded him from any premises she occupied. On the same date the charge of stalking or intimidating, on the basis of the incidents on 3 and 8 September 2023, was issued, and listed for hearing on 18 March 2024 (id., 51 - 55).
On 13 March 2024 FQ emailed S/Const Tanner saying that she was unfit to appear at the hearing on 18 March and asking that conditions 2 and 8 be removed from the PAVO (exhibit R2, p 17).
On 18 March 2024, the charge of stalking or intimidating was withdrawn after FQ declined to give evidence, and the PAVO was also withdrawn (exhibit R1, 97).
The decision to revoke the applicant's licence was affirmed following the completion of an internal review on 9 April 2024 (id., 96 - 99). The applicant subsequently lodged the present application with the tribunal on 29 April 2024.
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].
"When we got home, Darren told me to get the f*** out due to our argument. Darren then said, "If you dare take half my property I am going to shoot you in the head with my firearm and if you don't believe me I have a friend who fixed my car and charged me $1000 which was more than he should have, so I poisoned his two dogs and killed them - so you better believe I find you and shoot you in the head". "I was terrified of this threat. There had never been any talk of me taking his property, so I don't know where this came from. I also felt incredibly scared because I knew that he had six to eight firearms".
In the signed statement of 3 September 2023, FQ did not repeat her claim of 21 July 2023 that the applicant had held a firearm to her, threatening that he would use the gun on her. Police recorded that they had made multiple attempts to speak to her about this claim, but apparently without success. That allegation of actually holding a firearm to her and threatening her with it is undoubtedly more serious than the (also serious) allegation of using threatening language when not in possession of a firearm. That omission from the 3 September statement represents a significant change in her version of the events.
After she moved out into separate accommodation on 8 July 2023 the parties were in regular text and telephone contact. In a lengthy text sent on 21 March 2024 (exhibit A1, annexure DK - 8), FQ told the applicant that "Constable Tanna" (S/Const Tanner) had called from Cessnock police station to tell her that the applicant could now make contact with her: "I'm texting now as I was not allowed to before due to the police placing the AVO". She sent numerous photographs of the baby and asked the applicant if he wanted to be involved in the child's life.
The applicant said that he would like to be involved in the child's life if he was the father, but he had serious doubts about that and would want to have a paternity test done. It does not appear that any child support claim has been made against the applicant. He says he does not want to have anything to do with FQ, ever, has had no personal contact with her since 11 (or 24) September 2023, and does not return her telephone messages or texts. He is considering options for being involved with the child should he prove to be his, but at present does not know where the child is, his name or when he was born.
The applicant emphatically denies making the alleged threats on 5 July 2023, or any other threats, and his position was not weakened in cross-examination. Mr Joseph pointed out that FQ's allegations had not been tested and submitted that there was no equivalence between tested and untested evidence. That consideration would not be decisive if the untested evidence were convincing, but that is not the case here. FQ's account of the threats allegedly uttered on 5 July was not given until 3 September, and omitted her serious 21 July assertion that the applicant had actually held a firearm to her and threatened to shoot her. Both the significant time lapse and the substantial change of story do little to strengthen the credibility of FQ's account.
The police report of the applicant's telephone call of 5 July 2023, which was the starting point for this narrative, does not portray a scene of violent anger. It records that the applicant had sought police assistance "to de-escalate the situation" because he was "having issues" with his partner. It would not seem likely that a man who had just made the murderous threats set out above would promptly seek the assistance of police. Also indicative is the police observation that when the applicant learned of FQ's pregnancy, he was "understanding" and said he no longer needed police assistance.
FQ's demeanour when police attended the premises and spoke to both parties on 7 July 2023, two days after the alleged threats, does not strongly suggest that she was in fear for her life. When police arrived she was in bed, saying she was struggling with the pregnancy and believed the applicant "was not understanding of how she felt and this was causing her to argue with him" (exhibit R1, p 40). Displaying a lack of understanding is conduct of a different order of seriousness from threatening to shoot someone in the head, an utterance which one would expect to be still dominating her thoughts.
The tone of the 7 July police report (ibid.) suggests a relatively calm interaction in other respects also. The applicant expressed doubts about the future of their relationship but explained that they were intending on moving closer to family for support and to be closer to resources rather than remain in their relatively remote location distant from doctors.
Again, after FQ moved out on 8 July, she remained in contact through messages and texts, through a meeting in late August and the arranged meeting on 3 September for her to collect her remaining belongings. The fact that FQ on 13 March 2024 sought to have conditions 2 and 8 removed from the PAVO, thus enabling the applicant to approach her, also does not suggest that FQ regarded the applicant as a threat to the safety of her baby and herself.
The applicant bears no burden of proof. On the basis of the evidence before the tribunal I am not satisfied on the preponderance of probabilities that the threats of 5 July 2023 were made as alleged.
The applicant is a man aged 44 who had a somewhat troubled youth, accumulating three cannabis possession charges and one charge of malicious damage. He also had a poor driving record, facing licence suspension on several occasions. He claims to have turned his life around, and that seems to be the case. He has had no involvement with the criminal law (apart from the dismissed stalking/intimidation charge) in almost 2 decades and has had no traffic infringements of any kind for seven years. He complied with the regulatory requirements of his AB licence, satisfying safe storage inspections, and has never come under adverse notice for any careless or inappropriate handling or use of firearms.
He is qualified as a baker and works in that calling, besides teaching bread-making courses at Hamilton TAFE, a position of some responsibility. He is thus making a positive contribution to society and may be expected to continue to do so in the future. On the basis of all the evidence I find that the applicant is a fit and proper person who can be trusted with the possession and use of firearms without danger to public safety or to the peace.
Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, 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].
The reasons given above for the finding of fitness and propriety are also relevant to the question of public interest. They indicate that there would be no real and appreciable risk to public safety, as understood in Webb, were a licence to be issued to the applicant. Further, the applicant's volatile domestic circumstances have fundamentally changed with the ending of his contact with FQ in September 2023.
It is in the public interest for farmers and graziers to have access to long arms for the protection of the environment and of primary industry. The applicant is not a primary producer, but he lives on a rural property which is affected by the common vermin and wishes to have firearms in order to keep them in check. Failure to do so could harm neighbouring properties.