Solicitors:
Duncan Maclean & Associates (Applicant)
Office of the General Counsel, NSW Police Force (Respondent)
File Number(s): 1410480
[2]
Reasons for decision
Richard Thompson (the applicant) seeks the review of the decision to revoke his Category AB firearms licence. The licence was issued on 7 September 2012 and was due to expire on 7 September 2017.
The decision to revoke the licence was made on 28 April 2014. It was affirmed on internal review on 23 July 2014. This Tribunal is reviewing the internal review decision.
The applicable statute is the Firearms Act 1996 (NSW) (the Act).
The decision to revoke the licence followed allegations about events that occurred on 23 May 2013 (the 2013 assault). Mr Marc Walton alleged that the applicant consumed alcohol prior to using a firearm, allowed unauthorised persons to use his firearm, and discharged a firearm on a public road.
Before the Tribunal, the applicant denied the allegations except for admitting that he allowed his son, who did not hold a licence, to use a firearm. He claimed that he thought his son continued to hold a permit that had been issued years ago.
The police were not notified of the allegations until an incident occurred between the applicant's son and Mr Walton on 13 February 2014, almost ten months later (the 2014 assault). Police attended the incident and Mr Walton was taken to hospital.
Mr Walton set out his allegations against the applicant for the first time in his statement dated 18 February 2014 (at pages 9 to 13 of Exhibit R2). He claimed that he went shooting with the applicant and the applicant's son in May 2013. He could not remember the exact date. They had all been drinking. The applicant was drinking Devil's Cut Bourbon which is 6.66% alcohol. He thought it was a bit before 7 pm when they left, because he had got beer from the local shop that shuts then. He described the assault that occurred after they had returned from shooting. He went home, called the ambulance and was taken to hospital. The applicant and his son came to his home while the ambulance was present. The son asked how he was. Mr Walton was interviewed by police at the hospital but did not want to take action because he did not want to ruin his friendship with the applicant's son. The applicant's son checked on Mr Walton after he went home from hospital and said: "I'm glad you didn't charge my father because he could have lost his firearms and then we would have trouble". About a week later, the applicant was in a motor vehicle with another person the applicant knew by his first name. He stopped, handed Mr Walton his beanie, tobacco tin and lighter and said: "We'll learn to get along", and drove on.
The statement explains why Mr Walton blamed the applicant for the son's assaulting him on 13 February 2014, setting out relevant incidents between the two assaults. He continued to be friends with the applicant's son after the 2013 assault and just spoke to the applicant "to keep the peace".
After the 2013 assault, Mr Walton did not have a problem with either of them until about two or three months before the 13 February 2014 assault. The partner of the applicant's son used to come to Mr Walton's house complaining about the applicant to his mother. One day, his mother went to the house of the applicant's son and his wife. The applicant "had a go at her", she said that she did not want to talk to him, and the applicant threatened to punch her in the face. Mr Walton confronted the applicant outside his house at night, about threatening to punch his mother. The applicant told him to "piss off". Mr Walton spun the wheels of his car as he left. Later that night, the applicant's son confronted him at his home about abusing the applicant. Mr Walton said it was because the applicant had threatened to punch his mother in the face and she confirmed that. Mr Walton did not spend as much time with the applicant's son after that.
About three weeks before the 13 February 2014 assault, Mr Walton went to the house of the applicant's son with two friends. The applicant's son asked if they had a problem and why he had not been coming around. Mr Walton said because of the applicant. About a week later, Mr Walton heard that the applicant's son had been asking if Mr Walton had been spreading rumours about him selling drugs.
The assault occurred after the applicant's son asked Mr Walton if he had been spreading those rumours.
On 19 February 2014 the applicant responded to the allegations in a digitally recorded interview when police served an interim apprehended violence order on him in relation to Mr Walton, a firearms suspension notice, and seized his firearms licence and his 13 registered firearms. (Exhibit 1 at 4c).
The applicant admitted punching Mr Walton twice "with a closed right fist to the face". He claimed it was in self-defence. He corroborated Mr Walton's allegations that the applicant's son and his partner were present during the assault. The applicant claimed that it was after he and his son's partner had "a little bit of a biff with an untidy house".
He initially denied knowing Mr Walton at the time of the incident and denied taking him and his son shooting on that day. He claimed that he had returned home at about 8.30 pm after spending three days at his mother's place in Cessnock.
The contemporaneous police report stated that after the interview was completed, the applicant continually made allegations about Mr Walton's criminal history, alcohol consumption, drug use and behaviour. He made several derogatory comments about Mr Walton's mother.
The police spoke to the partner of the applicant's son on 24 February 2014 at the applicant's address. She initially stated that she could not remember what had happened and it was a while ago. Police commented that she had then recited "the nearly exact version" that the applicant had provided to police. She agreed to supply a statement. She was driven to Nundle Police Station by the applicant on 26 February 2014. In her statement, she said that in May 2013 Mr Walton came to the applicant's home, where she and the applicant's son and children were then living. It was early evening. He was drunk. Around 9 pm the applicant came home. She did not know from where. He argued with her about the state of the house. Mr Walton came in, abused the applicant, grabbed him and then the applicant punched Mr Walton "with a closed fist in the face".
The statement of Mr Walton's mother made on 7 March 2014 corroborates his claim that the assault occurred when he went shooting with the applicant and his son in 2013, that the applicant threatened to punch her in the mouth at his son's home and that the visits to the home of the applicant's son and his wife slowly stopped.
The police recorded a further interview with the applicant at his home on 19 April 2014. He denied allegations made at a court hearing on 14 April 2014 that he had been consuming alcohol when shooting and had sighted his rifle on a public road by shooting at an empty can of Devil's Cut Bourbon. The applicant commented that Mr Walton made the allegation.
The interviewer said: "Mate, you mentioned it before, that ah when I spoke with you once before that you'd been shooting with, you've taken your son … and Mark (Walton) shooting, spotlighting?" The applicant said "Yeah that's right". The interviewer asked: … "What's the set up there when you go?"
The applicant said that he drove and "the young bloke was doing the shooting". He said that his son did not have a licence. He said that his son had a permit. He also claimed that "we've been shooting for years", "we've grew up with guns the both of us and … that's what we do". He named several properties where he went shooting, including a property near Nundle cemetery. When asked about the allegation that he had sighted a firearm on a public road, the applicant responded: "No, why, why do that?" The interviewer said that he was just asking. The applicant said: "I'm just saying, why do that when I've got all that property?"
The applicant provided a further statement to the Tribunal dated 27 October 2014. He agreed the criminal history and the traffic history in the s.58 documents relate to him.
He addressed in detail a common assault charge at Kurri Kurri Local Court on 30 August 2001. He agreed that he had assaulted his son, who is not the son relevant to these proceedings, and explained the circumstances at that time. He did not believe that he did anything wrong. He was looking after the welfare of his son. He entered a plea of guilty on legal advice.
He addressed in detail the circumstances of an incident involving his then wife on 4 August 2004. They were separated at the time. She was residing with her parents. He went to that residence to speak to her about financial issues. He "got into a bit of an argument with" her father. The applicant denied making repeated threats to kill his son, who is not the son who is relevant to this application. The applicant emphatically denied being intoxicated at the time. He denied previously assaulting his wife. He denied damaging the front door of the premises of that son's older girlfriend and had never been charged with such an offence.
When the applicant received a telephone call showing it was from his wife's parents' premises and a person identified himself as a policeman, he did not believe it was and conceded he may not have been polite. He had no recollection of speaking to a person claiming to be a doctor.
The next day, police approached him asking for his Firearms Licence. The police officer informed him it had expired. It was only then that the applicant realised that. He recalls "now" that he had had some problems receiving mail. That was the reason he had not renewed his licence.
The applicant took all the guns in his possession to the police. There was discussion about another firearm in his possession. He does not recall saying that the gun was in his son's possession and denies saying that. The stock was at his father's place and the lock was at the applicant's home. His undertaking to return the gun to the police slipped his mind because he was working seven days a week. He recalled the police coming to his place on 19 September. He had reassembled the gun and handed it to them.
He recalled appearing at Court in Cessnock on 17 November 2004 on charges of having firearms after the licence had expired. He could not explain the charge for using an unauthorised firearm. He agreed that he was fined $750, appealed to the District Court and the matter was dealt with under s.10 with no conviction recorded.
The applicant addressed in detail a plea of guilty on 4 November 2008 at Singleton Local Court for an unregistered motor vehicle for which he was fined $300. He got it registered shortly after.
The applicant agreed that on 4 February 2009 he was fined and disqualified from driving for 12 months for driving while licence suspended. He said that there was no public transport in his area, he was living alone and it was a necessity to get items of general living. He conceded that it was wrong.
The applicant agreed that he was charged with drive whilst disqualified from holding a licence on 8 September 2009. He was driving by necessity "but cannot recall the exact reason now" and was disqualified for a further two years.
The applicant claimed that he is very passionate and committed to recreational shooting and moved to Woolamin where he knew people who owned rural properties and who would permit him to shoot on their premises.
The applicant stated that he fought the apprehended personal violence order taken out by the police for Mr Walton. The application was dismissed in Tamworth Local Court on 14 April 2014. He addressed in detail the conversation he had with Senior Constable Flemming about the properties he shot on and the roads in the area.
The applicant denied taking Mr Walton and his son shooting on 23 May 2013. He recalled that he was living with his 86 year old mother in Cessnock assisting with her care. He would often travel to Cessnock and stay with her for days at a time. He has a good recollection of that day because it was the same day he later had an incident with Mr Walton.
He related the events of his day, beginning in Cessnock at his mother's house, including a meeting with Sonia Rootes in Tamworth until 8 pm and then returning to his home in Woolamin. He then recited his version of the May 2013 incident, including his "discussion" with his son's partner.
The applicant set out information about a private application for a Personal Violence Order made by Mr Walton on 28 June 2014. Mr Walton did not serve statements by the date ordered, did not attend court thereafter and the application was dismissed with costs.
The applicant repeated that Mr Walton's allegations were false and fabricated. He submitted that he is a fit and proper person to hold a firearm licence. He is a member of the Cessnock District Hunting Club. He holds many awards and trophies for competition shooting. He has been a member of a rifle club since he was about 19. He currently holds 13 firearms valued at about $20,000. He claimed that they are designed for competition shooting and cannot be used in the field or in rural areas because of their sights but there are other firearms that have been seized that he uses for vermin control and recreational hunting in authorised areas and is permitted to do so by land-owners.
The records of Mr Walton's admission to Tamworth Hospital state that he was admitted at 01:24 on Friday, 24 May 2013. The Ambulance Electronic Medical Record shows that the ambulance was dispatched at 00:11, was en route at 00:18, on scene at 00:45, and arrived at the hospital at 01:22. This evidence is independent, reliable, and contemporaneous with the assault.
I find that those records are consistent with Mr Walton's version of events and not the applicant's version. I do not accept that Mr Walton would have delayed up to three hours before calling an ambulance. His mother's statement is consistent with the ambulance arriving not long after Mr Walton arrived home. I have taken into account the statements of the partner of the applicant's son and of Sonia Rootes which support the applicant's version of events in terms of timing and his arriving home at 8.30 pm or 9 pm but do not accept that they are accurate accounts of what happened on 23 May 2013. The statement of the partner of the applicant's son is dated 26 February 2014, more than ten months after the incident. Ms Rootes's evidence is a letter addressed to "the Tribunal Member" and is dated 2 November 2014, more than 17 months after the 2013 assault.
I have taken into account that neither of those women was requested for cross-examination. However, as stated above, I prefer the reliable contemporaneous records about the ambulance movements.
I have taken into account the criticisms made of Mr Walton's evidence and the claim that he was motivated to harm the applicant. I find that Mr Walton gave the detail of what happened on 23 May 2013 to explain why he said that the applicant was responsible for his son assaulting Mr Walton in 2014. He had refused to give police an account at the hospital on 24 May 2013 because he did not want to end his friendship with the applicant's son. The statement of Senior Constable Hawes dated 20 March 2014 corroborates Mr Walton's evidence. Senior Constable Hawes said that he attended Tamworth Base Hospital on 24 May 2013 at about 1 am in relation to a reported assault. Mr Walton refused to tell the Senior Constable what had happened or to allow him to speak to the treating doctor.
I do not accept the submission made by the applicant's counsel that the magistrate dismissed the application for an apprehended violence order because Mr Walton's evidence was not credible. I do not have the magistrate's reasons. There were other factors that would have been relevant, including the delay between the application and the 2013 assault and that no further incident had occurred between the applicant and Mr Walton. In any event, I am considering and assessing the evidence in this case. I found Mr Walton a reliable and credible witness.
I accept the contemporaneous report at the hospital that Mr Walton had drunk six to ten schooners of beer. Given that he drank that amount over a period of about five hours, I do not accept that he was intoxicated to the extent that he did not recollect what had happened. That finding is supported by there being no reference in Senior Constable Hawes statement about Mr Walton being intoxicated when he spoke to him at the hospital or being unable, or claiming to be unable, to remember what had happened. He just did not want the police to act. In making those findings, I have taken into account that the assault happened up to a couple of hours before the officer spoke to Mr Walton when he would have been less affected by alcohol than earlier in the night.
I have taken into account the claims that Mrs Walton was in dispute with the applicant and had contacted the local council about various matters relating to the applicant and had threatened to get his gun licence taken off him. I accept Mrs Walton's denials about those matters and her evidence that she was only in dispute with the applicant about how he treated his son's partner.
At the hearing, the applicant denied taking Mr Walton shooting on 23 May 2013 or a month later. Later at the hearing, he said that a month after the assault and after Mr Walton had apologised, the applicant's son asked if it was "OK" to take him shooting that night. The three of them went to the property near the Nundle Cemetery. They did not stop on a public road. The applicant did not let Mr Walton shoot. He just stood on the back of the vehicle drinking. The applicant also gave a detailed account of when and where they cleaned the rabbits they shot.
I do not accept the applicant's account. I accept Mr Walton's evidence that he went shooting with the applicant and his son on 23 May 2013 and thereafter he only said hello to the applicant to keep the peace.
I find that on 23 May 2013 the applicant allowed his son to shoot when he did not hold a licence and when he had been drinking alcohol. I accept Mr Walton's evidence that the applicant's son did most of the shooting and that Mr Walton fired five bullets in all. Accepting that the three of them had been drinking alcohol and the applicant was driving the vehicle, he may not have expressly allowed Mr Walton to shoot or known that Mr Walton had fired five bullets.
I find that on 23 May 2013 the applicant directed his son's sighting of a rifle on a public road near the Nundle cemetery. I have taken into account that the police record E216198895 that says that Mr Walton said that the applicant sighted the rifle on the public road, by discharging several rounds. I do not find the account inconsistent with Mr Walton's evidence at the hearing that the applicant's son was shooting at an empty can of Devil's Cut Bourbon and the applicant was directing the adjustments to the sight. I do not accept the applicant's evidence that he does not drink that brand of alcohol and did not sight a rifle on a public road.
The applicant's evidence about taking the applicant and his son shooting a month after the assault on a property near Nundle Cemetery corroborates Mr Walton's evidence that the shooting was on a property in that location.
I have taken into account the evidence about the names of roads in the area of the Nundle cemetery which the applicant's counsel relied on to cast doubt on Mr Walton's evidence. Mr Walton did not know that area well. Criticism of Senior Constable Flemming's identification of a road does not reflect adversely on the evidence of Mr Walton. I have also taken into account the evidence of Stanley Shorten about the locations of entrances to his property where the shooting took place and that he has told the applicant not to shoot in the area of his property off Splinters Gully Road because of a residence located there. I have also taken into account the aerial photographs provided after the hearing, which were viewed electronically during the hearing.
I find the applicant's claim that the shooting outing occurred a month after the assault that resulted in Mr Walton being admitted to hospital with the injuries recorded in the hospital record is implausible.
Licensing records show that the applicant's son was issued a Minor's Firearms Training permit issued on 17 May 2003 which expired on 16 December 2005. The applicant signed a permission for his son to acquire the permit. There is no other record. I do not accept that the applicant believed that his son held a permit in 2013 that allowed him to shoot under the control of the applicant. His evidence was unpersuasive, self-serving, inconsistent and disingenuous. He said that he got his son the permit "years ago" and did not think it would run out as it has. He also claimed that he thought the permit continued for ten years. Such evidence is inconsistent with his own licensing history. He renewed his licence in 2012 for five years, the maximum period allowed.
I find that the applicant has gone shooting many time with his son who has had no permit since 2005 over a long period of time. He said that he had shot with his son over the years, that his son has been around guns all his life, he knew that he was not licensed in later years, and knew he did not have a permit apart from two years. He acknowledged that he had not concerned himself with the Act during that time. He looks at it as a family sport.
The applicant has contravened a condition of his licence by allowing his son to use a firearm in his possession when he was not authorised to possess or use the firearm (s 19(2)(b) of the Act). The Tribunal does not accept Mr Coady's submission that this was a "technical" breach or an "oversight".
At the hearing, a DVD was played that showed the applicant going up to Mr Walton in the foyer of Tamworth Court House on 16 June 2014. Mr Walton walked out and reported the matter to the police as recorded in the report at tab 4a of the s.58 documents. The Tribunal accepts Mr Walton's claim that the applicant approached Mr Walton to intimidate him. It does not accept the applicant's claim that he was protecting his son's partner.
I find that the applicant has little regard for his legal obligations. That is reflected not only by his conduct on 23 May 2013 and taking his son shooting when he knew he had no permit or licence, but by his previous history summarised above. When cross-examined about those incidents, the applicant sought to justify or excuse his conduct rather than accept that he had not complied with his legal obligations.
I accept that the applicant has been storing his guns lawfully when police have carried out checks.
A licence may be revoked if the licensee contravenes any condition of his licence (s24(2)(b)(iii)). The applicant has contravened a licence condition.
Taking into account that the applicant has allowed his son to use his firearm over a period of about 10 years when he knew his son did not hold a permit or licence, that he allowed his son to use a fire arm when he was intoxicated and sight a fire arm on a public road and that he has a history of disregarding his legal obligations as discussed above, I am of the opinion that the applicant is no longer a fit and proper person to hold a licence.
For the same reasons, I am also satisfied that it is not in the public interest for the applicant to continue to hold his licence (cl.19 of the Firearms Regulation 2006).
I affirm the decision to revoke the applicant's Category AB firearms licence.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 25 May 2015