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 [2001] NSWADT 50
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police [2001] NSWADT 50Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60El-Ashrafi v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 103Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95Sterjovski v Director-General, Department of Transport [2002] NSWADT 10Vella v Commissioner of Police, New South Wales Police Force [2003] NSWADT 91Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Judgment (17 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Pece Todorovski applied to this tribunal on 27 September 2018 for review of a decision by the respondent on 25 November 2017 to revoke his category AB firearms licence. That decision was affirmed by an internal review on 3 September 2018.
The applicant is aged 49 years and has no criminal convictions. Under previous legislation, he held a firearms licence for almost 4 years. He then held a category AB firearms licence continuously from 19 October 1998 until he allowed it to expire on 10 December 2008. Police preparing to impound his firearms reported that he had gone overseas and had taken his four firearms with him. They were believed to be still overseas.
Between 1 July 2009 and 25 November 2017, he held a category AB licence for the reasons of recreational hunting/vermin control and target shooting, both based on a club membership. His safe storage arrangements had been inspected on two occasions by police at two different locations and approved.
On 9 March 2017, his daughter Lile (also spelt Lila) Nedanovska made certain allegations to police that he and her brother Jovan (John) Todorevski and other family members had a history of domestic violence against her. Those allegations led to his becoming the subject of a provisional apprehended violence order on 10 March 2017, and later an interim apprehended violence order (IAVO). In addition, he was charged with two counts of common assault and with assault occasioning actual bodily harm (DV). His licence was suspended on 13 March 2017 and police took possession of his licence and his five registered firearms. His licence was revoked on 25 November 2017 pursuant to s 24 of the Firearms Act 1996.
On 29 June 2017, Lile Nedanovska did not appear at Sutherland Local Court in connexion with the charge of assault occasioning actual bodily harm against her father, and the prosecution did not proceed. The IAVO and the two common assault charges were withdrawn on 11 October 2017.
The Sporting Shooters' Association of Australia (NSW) Inc. confirmed to police that the applicant's club membership was current, but that he had not completed any mandatory shoots, for either of his licence reasons, since the 2011/2012 reporting period. His son Jovan lives at his home and is not eligible to hold a firearms licence. The applicant's licence was revoked on the grounds of his domestic circumstances and that it was not in the public interest for him to hold such a licence.
[2]
Applicable legislation
Clause 107 of the Firearms Regulation 2017 provides that the holder of a sport/target shooting licence must participate each year in at least four shooting activities of an approved shooting club. Similarly, cl 108 of the regulation provides that where a licence is issued for the reason of recreational hunting/vermin control and membership of a hunting club is the sole ground supporting that reason, the licensee must participate each year in at least two hunting club events:
107 Participation requirements for sport/target shooters (other than pistol shooters)
The holder of a licence issued for the genuine reason of sport/target shooting (not being a category H licence) must be a member of at least one approved shooting club (other than a pistol club) and must, during each compliance period for such a club of which the person is a member, participate in not less than 4 shooting activities of an approved shooting club (other than a pistol club) whether or not of a club of which the person is a member.
108 Participation requirements for member of approved hunting club
(1) The holder of a licence issued for the genuine reason of recreational hunting/vermin control to a member of an approved hunting club must be a member of at least one approved hunting club and must, during each compliance period for such a club of which the person is a member, participate in no less than 2 hunting club events.
(2) This clause applies only where membership of an approved hunting club is the sole ground on which the licensee has established the genuine reason of recreational hunting/vermin control.
(3) In this clause:
hunting club event means any event approved by any approved hunting club (whether or not a club of which the licensee is a member) involving hunting, shooting or firearms safety training.
Section 24(2) provides:
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
[3]
The applicant - Mr Pece Todarovski
The applicant tendered two statements (exhibit A2), the first made on 3 April 2019, in which he described his childhood on a farm in Macedonia and his participation in competitive shooting. He and his family migrated to Australia in 1987 and in 1988 he married his wife, Vesna Todarovska. They have three children, including their son Jovan, now aged 27 and currently reside at Mittagong. In about 2013, Jovan, his wife and two children moved into the house in order to assist in caring for Vesna. Jovan is Vesna's legal carer.
In about 2013, he became aware that Jovan had been involved in a road rage incident and was placed on a good behaviour bond. He believes that subsequently Jovan's firearms licence was revoked. Jovan has not been charged in relation to any other matter and the 2013 event was an isolated incident. Before his firearms were taken by police on about 13 March 2017, the applicant owned and kept firearms safely at his home, where Jovan lived, but at no time during the 4 years before his firearms were impounded did Jovan have access to, or possession of, any of the firearms the applicant owned and stored at home. He has no reason to suspect that Jovan would attempt to access them.
He has always had a strong and loving relationship with all of his children. He has never permitted any argument or difference of opinion to escalate to threats of violence or actual violence. He had worked very hard to build a successful business, buy a house and establish a safe environment for himself and his family.
In about March 2017, Lile told him and his wife that she was leaving her husband and had met a new man. That came as a shock to him and his wife as they had not suspected that there were any problems in the marriage. He gained the impression that she had met someone while she was married and was totally against the idea of his daughter breaking up her family because she had become involved with another man. He and his wife told Lile that they would never agree with her breaking up her family and a major argument ensued.
For about a week afterwards, they remained in contact with Lile to impress on her not to break up her family. He told her that he would disown her and would never accept her being with the man she was leaving her family for. At about that time police came to his house and arrested him, and charged him with assault against Lile, also applying for a AVO. That came as a total shock, as he was not expecting police to attend as there had been no incidents that would give them any reason to do so. The assault allegations against him also came as a total shock and were false. He had never been violent to anyone in his family. Police took his firearms and suspended his firearms licence. Eventually the charges and the AVO were dropped.
[4]
Ms Lile Todorovska
The applicant called his daughter Lila Todorovska (previously Nedanovska), who adopted her statements of 3 April 2019 and 2 May 2019 (exhibits A4 and A5) in which she stated inter alia that she currently lives at Milperra with her fiancé and her two children aged 11 years and 10 years. She had a conservative Christian Orthodox upbringing and was taught about the Macedonian culture. Her parents taught her to live a conservative life and place her family before anything else. She was taught that divorce was taboo and that when she married and had children, her children and family should be viewed as the most valuable thing in her life.
Her childhood was a happy one and her parents were very loving. When she did something wrong, she would be disciplined, but that never involved any physical or emotional violence. She married her first husband in 2006 when she was aged 18, had her first child at 20 and her second at 21. She separated from her first husband in early 2017 after 11 years of marriage. During the marriage, because she worked full time, her parents would care for the children.
During the marriage, her husband was abusive to her, but she kept that a secret from her parents. She developed severe anxiety and depression, however, because she felt trapped. She was desperate to leave him but was troubled with the thought of going through a divorce, as it was totally against the culture and beliefs that she had been taught from a very young age. By 2011, her depression and anxiety reached a point where she had to consult a doctor. She was formally diagnosed with depression and anxiety and prescribed medication called Lexapro and Seroquel. She took those medications only intermittently, as they made her feel unwell.
In about September 2016, she met her current partner and they became romantically involved. She was very happy because he provided her with emotional support and respect, something she had lacked for many years. By about March 2017, she decided that she wanted to marry him and made a decision to tell her parents that her marriage with her first husband was over and that she wanted to be with her current partner. She told her parents that she was getting a divorce in early 2017.
Both her parents were very upset by the news and thought she was cheating on her husband with another man. She did not blame them for thinking that, because she had kept the breakdown of the marriage a secret from them. She explained that her marriage had been over since about 2014, but her parents had difficulty in believing her. Her mother was crying and telling her that she would be bringing shame onto the family in the Macedonian community. Her father was also very upset and insisted that she not pursue her current relationship because it looked as if she was leaving her husband for another man. She understood why they perceived things the way they did and assured them that was not the reality of the situation. Nevertheless, they were very concerned about the perception of the family name in the Macedonian community and refused to give their blessings for her to be with her current partner.
[5]
Professor Stephen Woods
The applicant tendered an expert certificate and report prepared by a forensic psychologist, Professor Stephen Woods, dated 22 March 2019 (exhibit A1) in which he had been asked for an assessment with particular regard to the applicant's mental health stability and a risk of violence analysis. After an extensive survey of the applicant's background, Professor Woods had administered a number of psychological inventories and concluded that the assessment failed to detect any history of mental illness or mental disorder, violent tendencies (the only noteworthy exceptions being the untested and withdrawn allegations of domestic violence and having assaulted the daughter) and criminal offence history. Rather, his psychosocial history was consistent with that of a family (immediate and extended) and community oriented individual.
The report noted that the applicant's daughter Lile had said when interviewed that she has no fears or concerns regarding any possible risk posed by her father, her brother or indeed any members of her family. She visits her parents' home weekly and allows her two young children to stay with their grandparents every second weekend and for a significant portion of every school holidays.
In oral evidence at the hearing the witness described Lile's "very troubled childhood" involving bullying (a form of abuse) and a suicide attempt or overdose that could be a call for help or a genuine attempt. In either case it indicated severe depression. She is now taking medications that appear to be antidepressants and mood stabilizers. She said she had made up things in order to get the answers she wanted. Such people often seek reassurance, for example if they suffer isolation. People can lie in such situations or come to believe what they are saying. She had wanted to punish her family.
In cross-examination Professor Woods said that domestic violence complaints sometimes have substance, and sometimes not. Complainants can withdraw their allegations. Making up stories to tell a doctor was not rare, and for that reason he seeks collateral information. Complainants can sometimes relate their claims to one person but not to another, for various reasons. It was unlikely that a person would lie when receiving emergency hospital treatment, but he could not say whether it was highly unlikely or not. People can often omit information about an injury, and may lie, depending on their motivation.
[6]
Detective Senior Constable Michael Eames
In oral evidence at the hearing, Det. Eames said he had taken Lila's statement of 9 March 2017 (exhibit R2, pp 10 to 21). He had seen her for 2 or 3 hours. He had seen no reason to doubt her, and remained of that view. No pressure had been brought to bear on her. The witness had thought she wanted to report the matter and needed protection.
In cross-examination the witness agreed that he had seen Lila only on 9 March 2017. She seemed honest and he had believed her on the basis of the interview, which contained explicit detail. He had questioned her, but had not challenged her assertions.
[7]
Detective Senior Constable Adam Nicholls
Det. Nicholls adopted his statement of 22 June 2017 (exhibit R2, pp 8 - 9) and added that he had obtained Lile's medical records following the making of her statement. She had telephoned him and discussed the charges before the hearing, but had not said that her claims were untrue.
In cross-examination witness said he had looked at Lile's medical records. He had been seeking evidence to corroborate the 2004 incident, but had found none, which was not uncommon. He had not carried out further investigation in search of corroboration, as often the only prosecution evidence is the victim's statement. Lile had said she had reported the 2004 incident to a doctor. He had found no report, but was not concerned about it. He had found her evidence credible, a judgment he had based on her statement and the hospital record. She had said she had made disclosures about the matters to friends.
No charges had been brought in relation to the 2017 incident. He had found out after taking her statement that she had been impacted by mental issues, which had been confirmed by the medical notes. He had relied on the prosecutor's advice, and they had agreed to proceed, until she failed to appear. She had said she had made disclosures to friends and he had asked her for their contact details, but she was unable to supply them. The friends could not be found on police records. In re-examination, Det. Nicholls agreed that Lile had not said she had lied.
At that point the matter was stood over part heard to 29 August 2019.
[8]
Respondent's submissions
The respondent relied in part on written submissions that pointed to the applicant's failure to comply with cll 108 and 108 of the Regulation. The applicant's firearms licence was issued for the reason of sport/target shooting and recreational hunting vermin control based exclusively on club membership. He had been in breach of the participation requirements since the 2011/2012 reporting period and had offered no reason for non - compliance, nor had he disputed that he was in breach of the Regulation's requirements.
He had submitted that he owns a rural property and requires firearms to control vermin on it. That submission lay outside the reason for which he applied for a firearms licence. Section 8 of the Act provides that the authority conferred by a licence is "only for the purpose established by the licensee as being the genuine reason for possessing or using a firearm".
The respondent also submitted that the applicant's license should be revoked on public interest grounds, in accordance with ss 24(2) and 11(7) of the Act and cl 20 of the Regulation. The applicant's daughter, Ms Lile Todarovska, had made serious allegations of domestic violence against him and had alleged that there was an extensive domestic violence history. She had reported that throughout her childhood, her family's interference and personal matters would often lead to verbal arguments and assaults.
That behaviour continued into later life, creating conflict in her marriage and further incidents of assault, causing her to be in fear of the applicant and his son. Specifically, she described an incident in which her father, in the course of a domestic argument, had seized her by the hair and smacked her head down on a marble coffee table. She also alleged that her brother had used violence against her and that she was afraid of her family. Her medical records supported her statement and allegations. She also believed that the applicant and his family heard instigated an assault on her partner in 2017.
The applicant had been the subject of a provisional apprehended violence order and an interim apprehended violence order. He had been charged with two counts of common assault and one of assault occasioning actual bodily harm. Following Ms Todorovska's failure to attend court to give evidence, the charges were withdrawn by the police.
[9]
Applicant's submissions
The applicant submitted that there were problems with the respondent's approach. The allegations made at the time had not been tested, but have now been substantially tested for quality. The tribunal's findings of fact would flow on to the outcome of the application.
The main issue in the allocation was the domestic violence allegations. These were not only against the applicant, but against the whole family. There was no evidence of criminal records except the son's road rage incident, and no evidence of domestic violence. There was no evidence of any violence towards other family members, or that other family members used violence.
The applicant had held a licence since 1998. During the whole period of his daughter's dysfunctional behaviour, he had had a licence and possession of his firearms without incident. That raised the question of why these allegations were made when none of the other family members had made similar complaints. Lile been troubled and on medication, as the medical notes showed. She wanted to keep her family away as she was in a new relationship, but her family wanted her to stay.
The coffee table incident had been put forward as a matter of fact having a bearing on the public interest, but the police had not investigated it, nor had there ever been any reports to the child services authorities about it. Both the applicant and Lile said there had been no assault on her in 2013, but there were some differences in their accounts because of different times and perceptions.
The medical records (exhibit R2, p 23) referred only to "superficial bruising", nor had there been a fracture of her left orbit. Lile had lied to medical staff and to the police as she had admitted in her evidence. She had been unwell at the time and affected by medication, but was now stable. There been no criminal hearing in relation to the domestic violence allegations because Lile had pulled out. She had wanted to push her family away so that she could pursue her new relationship, and this was a way of doing it. That was her motive, and although it was directed the entire family, the applicant had been caught up in it.
The evidence of Dr Woods was unchallenged and his risk assessment was particularly significant. He estimated the applicant's risk of violence at the lowest possible level, which was consistent with the fact that his firearms record showed no safety breaches or incidents. Lile had repeatedly said that she now wants to make things right.
[10]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal to issue a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(a) 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 "way of living or domestic circumstances".
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 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].
[11]
Public interest
Section 24(2)(a) of the Act states 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. The combines effect of s 24(2)(d) and cl 20 of the Regulation is that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold it.
The "public interest" 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 an often-quoted 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 [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, New South Wales Police Force [2013] NSWADT 5 that 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]).
[12]
Incident at Sans Souci 1 November 2004
According to her statement of 9 March 2017, following a telephone conversation with her boyfriend Paul Martinovic, Lile had taken an overdose of sleeping pills. Shortly afterwards, Martinovic presented himself at the front door and told the applicant that if his daughter committed suicide, it would not be his (Martinovic's) fault. He left a little later. An argument with her parents ensued, in the course of which her father seized her by the hair and slammed her head on a marble coffee table, causing her to lose consciousness. That version of the events is reflected in the police fact sheet (exhibit R2, pp 1-5).
The matter was not reported to the police until she made her complaint on 9 March 2017, nor was it reported to the child services authorities. Neither of the applicant's other two children made any complaint about it and it was not the subject of any medical record (see exhibit R2, pp 175-189).
Lile did make the allegation in her report to the police of 9 March 2017, but her statement of 3 April 2019 does not mention it. Instead, it states, "My childhood was a happy one. My mother and father were very loving to me. When I did something wrong, I would be disciplined by my mother or father, however, that never involved any physical or emotional violence".
In cross-examination she said there had been an angry altercation and that her father had pulled her hair, though she did not recall her head being slammed on the table and did not know what had happened. She was 15 and used to make things up in order to feel better. At the time she had thought that she could not speak to her parents. It was a serious matter and she had to live with the fact that she had said it. There could have been a slap, a grab or a push, but she did not recall her head being slammed.
By the applicant's account, Lile was not herself at the time and was influenced by drugs. She was behaving in a wild manner. He had not pulled her hair or slammed her head on the coffee table but had just hugged her and had arranged for his wife to take her to the doctor.
While Lile has now abandoned the coffee table part of the narrative and says she cannot recall it, she still maintains that the applicant pulled her hair. He denies it, but his oral evidence had a tendency to deny everything, even, as will be shown below, points that he had admitted in his signed statement. His claim to have played a purely irenic role in the fracas is less than wholly persuasive. Her evidence on that point is more plausible in the context of what .must have been a noisy argument, and I find that the hair-pulling did occur.
[13]
Incident at Penshurst 16 May 2013
In her statement to police on 9 March 2013, Lile explained that in 2013 she had started to tell her parents about the physical abuse she had been suffering at the hands of her then husband, Nik Nedanovski. After he had left the home saying that he would not be returning, she had arranged a meeting with her parents at her Penshurst apartment to discuss the situation. Her grandmother, Blaga Todorevska, was also present. Her father contacted Nik and told him to return to the apartment, which he did shortly afterwards also.
The applicant then began shouting at Lile for wearing lipstick and called her a slut. Her grandmother joined in, but Lile began to think it was all too much and asked them all to leave. Her brother objected and began pushing her towards a wall, whereupon her father began punching her, as did her brother Jovan. A family friend, Tanja Angelovska, arrived after about half an hour and insisted on taking Lile to St George Hospital. As a result of the assault, she suffered a hairline fracture to the nose and left eye socket, as well as bruising and scratches all over her body. The police fact sheet is to the same effect and the respondent relied on that account.
Lile's statement of 3 April 2019 (exhibit A4) does not specifically mention the episode, but in oral evidence she said it was really her brother Jovan who assaulted her, and that her reference to punching was an exaggeration. There had been pushing and shoving, but she had said some things that were not true by reason of her mental state and the fact that she had been failing to take her medications.
She had asked her father to come over because she trusted him and felt he would protect her. Nik had said some falsehoods and her family had tended to believe him, however. Her brother had grabbed her and shoved her against a wall, but her father tried to stop it and did not assault her. She did not recall him saying that he wanted to kill her. The hospital had said that she had bruising on the face, but it was Nik who had done it. She now wanted to obtain justice for her father.
The medical records do not support Lile's 2017 report to police. On 29 March 2017, she told Dr Sofia Roubina that when her family found out about her divorce plans, her father was physically abusive and "she ended up in hospital with fractured L orbit" (exhibit R2, p 68). But the record made by the hospital on 16 May 2013 stated that she presented with facial bruising and says nothing about a fracture: "She was investigated with CT brain and facial bones - showed nil intracranial pathology or facial bone fractures" (exhibit R2, pp 23-24).
[14]
Domestic circumstances
The respondent also relied on s 11(4)(a), which states 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: (a) the applicant's way of living or domestic circumstances…." Section 24(2)(a) gives the tribunal the power to revoke a licence for that reason.
The respondent pointed out that the applicant's son Jovan resides at the applicant's residence and was involved in a road rage incident in 2013 where he assaulted another person. His firearms licence was revoked following that incident. Because of that, and because of the turbulent period of family life that led to the three withdrawn charges, the Commissioner expressed concerns that should the applicant to be licensed to hold firearms, he may not be able to maintain continuous and responsible control over them.
I have concluded of the more serious aspects of those charges are not sufficiently supported by evidence, although I do think they involved somewhat more kinetic activity than the applicant was prepared to admit. Nevertheless, those matters occurred six years ago now and there have been no such incidents since then. He has no criminal convictions.
As regards his son residing in the same premises, it is relevant that the applicant has passed two separate safe storage inspections. He has never been the subject of any report of careless or improper use or storage of firearms, including during the turbulent period described above, or that he has allowed his son access to firearms. Jovan's 2013 road rage assault appears to have been an isolated episode.
In both her written and oral evidence, his daughter Lile was very supportive on this point. In her statement (exhibit A4), she wrote, "My father is not a violent person and I know he would not harm anyone. I do not for a second believe that he would use a firearm to hurt me or anyone else in the community". At the hearing she said that her father had always had guns and used them responsibly. He had never used them to threaten, or even shown them, and she had never been afraid of him because of his gun ownership. I therefore find that there is no reasonable cause to believe that he would not exercise continuous and responsible control over firearms by reason of his domestic circumstances.
[15]
Contraventions of cll 107 and 108 of the Regulation
Clause 107 of the Regulation provides that the holder of a licence issued for msport/target shooting must, during each compliance period of one year, participate in at least four shooting activities of an approved shooting club. Similarly, cl 108 provides that the holder of a licence issued for recreational hunting/vermin control, where club membership is the sole ground supporting the reason, must during each compliance period participate in at least two hunting club events. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Vella v Commissioner of Police, New South Wales Police Service [2003] NSWADT 91, [4].
The applicant has been in breach of the participation requirements in the Regulation since the 2011/2012 reporting period. No explanation for this lapse has been forthcoming. The tribunal has held that the legislation requires strict compliance: Oliver v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 95, [23].
Presumably some latitude may be extended where, as here, the regulatory requirement is not directly related to safety. But the admitted total disregard of the requirement over a period of five years in this case is a substantial dereliction that cannot be overlooked. In those circumstances it cannot be in the public interest for the licensee to continue to hold the licence.
[16]
Conclusion
I therefore conclude as follows:
1. The applicant does not have a long record of domestic violence. The incidents at Sans Souci and Penshurst were isolated occurrences that were exaggerated out of proportion by his daughter who was at the time and when making the report in a mentally disturbed state. For the same reasons, and by reason of the other evidence, I find that he is a fit and proper person to hold a licence.
2. The applicant's domestic arrangements do not give reasonable cause to believe that he might not personally exercise continuous and responsible control over firearms.
3. Because of the applicant's failure to comply with regulatory requirements over a substantial period, it is not in the public interest for him to retain his firearms licence.
The applicant's firearms licence, if it were restored to him, would in any case expire on 1 October 2019, less than a month from this writing, and he would need to reapply for it. As the Commissioner's decision is to be upheld, he will have no licence but would be able to make a new application, based on proper grounds that reflect his present circumstances, including the fact that he no longer wishes to engage in target shooting. As the applicant put it, he wishes to "regularize" his licence status. If he does so apply, he would need to be able to satisfy the Commissioner that he is committed to full compliance with the legislative scheme in all respects. Thus the decision under review is affirmed.
[17]
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: 17 September 2019
Parties
Applicant/Plaintiff:
Todororovski
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Clause 20 of the Regulation provides 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.
The issue in this case is thus whether the correct and preferable decision is that the applicant's firearms licence should be revoked on the grounds that the applicant has contravened the Act and that it is not in the public interest for him to continue to hold it.
After the court matter was completed, Lile called and apologized to him for the way she had handled the matter. She said she had been suffering from medical issues at the time and did not mean to create problems for him. He had never held any feelings of anger towards Lile.
On arriving in Australia, he had wished to continue competing in target shooting competitions and engaging in recreational shooting. He obtained a firearms licence and joined a target shooting club. He also travelled to Macedonia with his firearms several times over the years to compete in target shooting competitions and tournaments, winning numerous competitions. He owns a 113.3 hectare rural property at Coolah, New South Wales, which he purchased with a view to obtaining livestock and planting crops, similarly to what he had done growing up in Macedonia. He is in the process of obtaining licences and attending to various other requirements to prepare the land for farming and agricultural production. The property is suitable for wheat-growing and sheep grazing.
The region where the property is located is known for having vermin that affect fencing, wheat crops and sheep, namely feral pigs, foxes, rabbits, goats, feral cats and wild dogs. They regularly damage fences, wheat crops and kill livestock. The property has large numbers of vermin that have caused damage. He needs a firearm to control the vermin, but does not now claim that he needs a firearms licence for target shooting.
In the year he migrated to Australia, the applicant established the business known as JP Bricklaying. He is a licensed bricklayer and has held that licence since about 1987. In order to obtain the licence, he undergoes a fitness and character test by the Department of Fair Trading. He has never lost his bricklaying licence or been subjected to any complaints or disciplinary proceedings. He takes pride in his work as a bricklayer and has purely relied on referral work in order to survive. He prides himself on the fact that almost 100 percent of his work stems from referrals from satisfied clients.
He has no criminal convictions and has never engaged in criminal conduct, including the conduct alleged against him towards Lile. He has always abided by the law and complied strictly with the ADVOs and his bail conditions while they were in place. He is a religious man and adheres to his Christian beliefs. He is an active member of the Makedonska Pravoslavna Crkva Macedonian Orthodox Church. He regularly donates to the church to assist the poor and needy. In his spare time he provides help to his family and friends.
The applicant also provided a brief statement dated 3 May 2019 (part exhibit A2) referring to Lile's statement of 9 March 2017, denying the allegations against him contained in it and stating his willingness to appear at the hearing to give oral evidence.
Cross-examined on the adjourned date, Mr Todorovski said that his reason for wishing to have a firearms licence was no longer target shooting but hunting, of which he had done a great deal back in Macedonia. At Coolah there was a major problem with vermin, including numerous foxes, wombats and kangaroos that destroyed his fences. He had purchased the property about a year and a half ago but had not had a firearms licence since then, although he had held one previously for 25 years.
He was aware that his daughter Lile had told police that she believed he had been responsible for the assault by two men on her partner, but he had not been involved and did not know who had been. At that time his daughter did not know what she was doing. He had never been charged in connexion with the offence. There had been no physical fighting while she had been growing up and he had never been violent with his children but had only taught them to be respectful. He could slap them on the posterior when they were 10 or 12. But Lile was different once she started at high school, her attitude had changed and she made many problems, unlike the other children. He had never struck his wife, not once. They had been married at 19 and had a good relationship all their lives.
Asked about Lile's account in her statement (exhibit A5) of her relationship with Paul Martinovic when she was 15, he said that the boy came to his door and said, "If your daughter commits suicide, it's not my fault", and had then left. He had not then called his daughter a slut or anything that nature as alleged. She was in a state where she could not walk because of drugs, and he had cried, as she was not acting normally, she was wild. He had taken her downstairs to help her and get an explanation, but she was not acting normally and from that day on became very wild and aggressive.
He had not said "How dare you", but he had been upset and did not remember what he has said. He had not pulled her hair or struck her head on the coffee table, he had just hugged her and told her to see a doctor, as had his wife, but Lila had not wanted to see her father.
Later he had met her husband Nik, as she had said she wanted to marry him, he had wished her good luck, as his wife had said that Nik was a good boy. She had returned to normal after spending a year in Macedonia.
In 2013 she had told him that Nik had assaulted her. She called her father over to her apartment (which he had given to the couple), saying that she was thinking of leaving him as she was having problems with him. The applicant went there with his wife, but Nik was not there and he did not know where he was. He had been shocked because he had not been aware that there was any problem, no-one told him anything.
He had not told her that she should respect Nik, or that she should not use lipstick or that she was a slut. He had broken up a fight between her and her brother. She had phoned Nik to come over and he had told him that it was not right to assault Lile, saying "If you can't control your marriage, it would be better if you split up. It's her life". She was red around the eyes but had no injuries. His son had not punched her, as he had held them apart. He was "100 percent" sure that he had not threatened to disown her if they separated, nor did he accuse her of cheating on her husband, nor that he wanted to kill her.
Lile had not fallen down; his wife had followed her to the bedroom, where she had fallen. He had not struck her but had only tried to keep the two apart. Her brother had not been pushing her, that was Nik. Eventually she had asked them all to leave the apartment. When he had left, she had no injuries and he did not know why she had gone to the hospital. The only pushing that had been done was when Lile had tried to push John out. It was when Nik had arrived that they started to argue. His wife had told him that there had been some pushing in the bedroom, and Lile said that she had been bashed by Nik, although he has seen no injuries. He and his wife had not taken sides but had said they should work it out.
He had not been there when Tanja had arrived and had not known that Lile had gone to hospital. His only intention was to help. He had never threatened to disown her, or kill her and her never been violent towards her. When she had told them in 2017 that she intended to get a divorce, he had told her to take her time and assured her that they would give her accommodation. He had never said that she would bring shame on the family and that he would never agree to their getting divorced. He had asked her if they could sort it out, for the sake of the two children.
At the time she had told police that she believed her father had arranged for the assault on her partner, she had been on drugs and behaving like a wild person. Now she wanted to do the right thing. He had not mentioned her drug taking in his statement because he had been ashamed about it.
In re-examination he agreed that when she had told him she was leaving her husband and was in love with another man, he had thought she was cheating and felt bad about it because it conflicted with their culture and religion. He had said the family was disappointed, but did not recall anything more. His wife had also expressed her disappointment.
She had arguments with her parents almost daily, usually over the telephone, over her intended departure, but though there were raised voices all round, there were no threats other than threats to disown her. During that period her depression and anxiety were at their peak. She felt helpless, wanting her parents' blessings and wanting to leave her husband and be with her current partner. Her emotional state was at its lowest and she was not taking all her medication. She began acting irrationally, depending on the mood she was in.
In March 2017, her partner was approached by two Pacific Islander men who assaulted him. The reason for the attack remains unknown. At the time, because she was arguing with her parents, she assumed that the attack had something to do with them and she and her partner reported the matter to police. She knew she could not prove that the attack was initiated by her parents, so she began telling police that her father had assaulted her in the past, in order to induce the police to believe that the attack was initiated by her family. The things she told police were not accurate and she was in a poor mental state at the time. She does not deny that she and her father have had many arguments in the past, but he has never been violent towards her. At the time she reported the incident, she was suffering from depression and anxiety and was not taking her prescribed medication for her mental health conditions.
After the incident, she visited her doctor and told him about her partner being attacked and her belief that it was her family who had arranged it. Her doctor recommended that she take her medicines regularly in order to control her emotions and anxiety. After she had said those things to police, her father was charged with the offences of common assault and assault causing actual bodily harm, and also became the subject of an application for an ADVO.
While the court matters were proceeding, she was taking her medication as recommended and had become stable. When she stabilized, she realized that she had done the wrong thing and approached the police and told them that the information she had provided was wrong and that she had been in a bad mental state at the time. The police told her that they would pass the information on to the relevant quarters in the police force. The next thing she heard was that the charges and ADVOs application against her father had been dismissed.
After the proceedings had been dismissed, she called her parents to apologize. They had a very long discussion about her marriage, the abuse by her husband, her poor mental state and what had led her to say the things he had said to the police. Her parents were very forgiving and supportive. They had not appreciated how bad things were in her marriage and how it had affected her mental health.
Since she and her parents have discussed all of her problems, she has never been happier. It feels as things were before she was married. She shares a close and loving relationship with her parents and they are very supportive of her and her new partner. She is expecting their first child and her parents have provided her with full emotional and financial support. Her psychological problems are now under control and have stabilized. She takes her medication regularly and sees a psychiatrist on a monthly basis, because her condition requires her to obtain medication and prescriptions.
The father is not a violent man and she knows he would never harm anyone. She does not for a second believe that he would use a firearm to hurt her or anyone else in the community. He is a caring and loving grandfather to her children, assisting her with attending to their needs and providing her with financial support if she needs it. He does not pose a risk to her children, who spend a lot of time with him and have a great deal of fun with him.
In oral evidence at the hearing the witness adopted her statement of 3 April 2019 and reiterated the stress of her life with her first husband. She had seen her doctor about her feelings of self-harm and non-existence. Nevertheless, she had two children whom she needed to care for. She was diagnosed with depression and anxiety and was prescribed certain medications, but as she had not been taking them properly, they made her drowsy and nauseous, affecting her work performance and causing mood swings. She stopped taking her medications but is now taking them correctly and sees a psychologist and a psychiatrist. Her environment has improved since two years ago.
She had made the report to police in March 2017 when she was in an unstable mental state. Her condition improved after eight months and by September to December 2017 she was enjoying a better life. Consequently, between 2011 and 2017 she was struggling psychologically, feeling very angry and let down, and was overwhelmed. She blamed her family for allowing her to marry young, and blamed others for her mistakes. She became paranoid and acted out. She had called the police in March 2017 to make her report, but later said she did not wish to proceed with the charges. All her contacts were with Det. S/C Nicholls, sometimes leaving a message for him if he was not available. After receiving counselling she was nervous because she had misrepresented her father. There was no evidence that he was involved in the assault on her partner, so she changed her view of the events.
She had told the police about the other reports she had made in November 2004 at Sans Souci and on 16 May 2013 at Penshurst, and her father was charged in relation to those matters, together with the later incident. In her statement of 2 May 2019, she explained that there were inaccuracies in her earlier statement and that she had not wanted to give evidence. The reference in the 9 March 2017 police statement to "fights" did not mean physical conflicts. She had assumed that it was physical. Her memory was inaccurate. She suffered from much anger and made assumptions about her father, thinking he was to blame for the assault on Steven. She discussed with Det. Nicholls her wish not to proceed because of her mental state at the time she had made the statement.
In relation to the report that her father had struck her head on a marble table, she said she could not remember, there had been an angry altercation, involving an incident with her head, but she did not know what had happened. Her hair had been pulled, but she recalled no smack on the table. At the time (2004) she was aged 15 and used to make things up in order to feel better, as she felt she could not talk to her parents. It was a serious matter and she had to live with the fact that she had said those things. During the argument there could have been a slap, grabbing or pushing, but she did not recall being slammed on the table.
The reference at paragraph 8 of her 9 March 2017 statement to assaults meant verbal assaults. Her father was not abusive, but she had seen him as such at the time. He was much more verbal. Now that she has children she understands the difference between discipline and abuse. In paragraph 10, where she quoted her father as saying that if she was assaulted by her husband, it was her own fault, she had said that out of anger as her mental state was bad and she was not taking her medications. The assault at Penshurst by her brother that she had referred to was to a great extent untrue. There had been pushing and shoving, but to say there had been punching was an exaggeration. Following a dispute with her husband involving some force, she had called her father because she trusted him and felt he would protect her. She told him some things that had been false, and her family were all upset, believing the husband's account. It was her grandmother who had put her down with her comments, not her father. She had said many false things because of her mental state and now wanted to see justice for her father. Her brother had grabbed her and pushed her against the wall, and her father had tried to stop it.
She had told the nurse at the hospital that day that she did not want to press charges, saying it didn't happen, and was a result of her mental state. She had told the police she had been beaten, because she had lost confidence. The hospital observed bruises on her face, but it had been her husband Nik who had caused them. Despite the statement in the hospital report (exhibit R2, p 23) she did not think her father had wanted to kill her. He had been involved in pushing and shoving, and attempting to stop the fight between her and her brother. The medical records contain no mention of being slammed into a tabletop, or any record of head injuries. Her head had not been struck. There had been no reports of violence after that.
Her father had always been a responsible gun owner and had never produced them or threatened anyone with guns. He kept them solely for hunting. She had no fears of any violence from her father on the basis of her whole life experience with him. There was no possibility that he would use a gun against her, it was out of the question. He would never harm anyone else. She now always allowed her children to be with her father, even alone.
In cross-examination Ms Todarovska said her father would never bash or punch her but would only give her a smack as a child. She had been apprehensive about confiding in him because culturally the boys in the family are closer to their father.
She was asked about a hospital note dated 5 August 2005 (exhibit R2, p 181) which referred to bullying at school, being called names, including "slut", and being put down. The note said it was doubtful whether she had any real friends and was afraid to do well at school. She could not tell her family about it, as her father would "go and bash everyone up!!". She replied that she was 15 at the time and was making an assumption based on his anger. She had seen him be verbally violent, but had wanted to use those words because of her fear of communicating. She had made a poor choice of words and now wanted to do what was right.
In relation to a surgery consultation record by Dr Sofia Roubina dated 29 March 2017 (exhibit R2, p 68) which said that when her family found out about her divorce, her father was physically abusive and she suffered a fractured L orbit (eye socket), and that all her family was against her and physically and verbally abusive, she said the incident had happened in 2013 but there had been no fracture. He had been verbally aggressive to her. She had been assuming at the time that her father had been responsible for the attack on Steve.
Asked about the hospital report dated 16 May 2013 (exhibit R1, p 131) which stated that her father had accused her of cheating on her husband and that he wanted to kill her, she said she had made a "cultural assumption" about what he would do. He had tried to break up the struggle but must have pushed her and struck her. Her injuries had been the result of fainting and collapsing.
She had never been afraid of her father by reason of his gun ownership. She herself had never gone hunting with him, but she had seen the videos that he and his hunting partners had made. It was her choice of words that had put her in the present situation and she was ashamed of the fact. She could not live without her father and was not simply trying to help him. She needed to repair the poor choices she had made as a troubled teen and in a troubled marriage.
She had believed her father and her family had been to blame for the assault on Steve because she had seen his violent reaction. He had not instilled fear in her, but she had feared letting him down because of the divorce. But she did not believe that he would arrange for others to carry out an assault. She was then asked about the passage in paragraph 5 of her 9 March 2017 police statement (exhibit R2, p 10) that, "Growing up as a child I witnessed a lot of physical fighting within the family. I witnessed physical abuse and assaults against the women in my family including my mother at the hands of my father. The influence of my grandparents caused my father to assault my mother. It's a cultural thing". She said she had meant verbal fighting, involving pushing and shoving. It was physical in that sense.
She had overdosed on sleeping pills as described in paragraph 6, but although there had been some physical contact, she was not sure about it and thought she had overreacted. The incident involving the table was not true. It was all a blur caused by a 15 year-old girl who had overdosed. The assault referred to in paragraph 10 had been by her husband, and it had been her grandmother who had called her a slut and other names. She had called her father for help and he had tried to stop her brother from pushing her. He did not punch her, but she had said he had as she wanted to escape from the marriage because of the cultural expectations involved. She had wanted to make her father out to be a monster so she could get away and start afresh.
When the hearing date for the charges was approaching, she had left a message for Det. Nicholl saying that she would not be attending the hearing. She had not wanted to give evidence because her statement had been inaccurate evidence.
In re-examination, the witness agreed that she had come to the tribunal hearing by choice and had chosen to give true and correct evidence on oath, and she had chosen not to go to court in relation to the charges because she did not wish to lie under oath. She had been having problems at school that had affected her behaviour. She had told the doctor about the problems she had been having at school (exhibit R2, p 181) that had affected her behaviour. As a result her parents had tried to make a fresh start again in Macedonia, which had been the best course of action for her. A great deal of what she had said resulted from her wanting to get out of the marriage and keep her parents away. The incident with the coffee table was exaggerated, and she had not told the doctor about it.
The witness had spoken to Lile for about 30 or 40 minutes. He had said in his report (exhibit A1, p 5) that she might "possibly" have overstated the situation in relation to the 2004 and 2013 incidents. She had added that she felt "pressured" by police to make the allegations. His report had been based on the parties' responses and psychological inventories, but in accordance with his usual practice he had analysed the results by taking into account as much information as possible, comparing her current mental state and the results of other test profiles, and then examining their relevance. Thus, for example, if she was fearful of her father, would she allow her children contact with him? He would then prepare a structured judgment in relation to future relevance. He was persuaded by the statements of his clients because of their consistency.
The witness agreed that if the applicant had slammed his daughter's head on a coffee table, that would be a serious matter that would cause him to alter his views, as would pushing into a wall and punching her. The question would then be whether it had been an isolated incident that was unlikely to have great relevance for the future. A history of controlling or violent behaviour would merit substantial weight. In this case it was clear that pushing and shoving had occurred in the course of a mêlée, but she had said that there had been no assault. It would have been better if more comprehensive information had been available, but it was not uncommon to have limited information. But on the basis of his experience, he could assess the situation, including by looking at how the information was presented, asking "looping" questions and observing the applicant's aspect when asked questions in a different way. He had spoken to the applicant for 3 hours, in addition to the time taken administering the questionnaires, and felt that he was reliable.
In re-examination the witness said that after hearing Lile's evidence at the hearing, he saw no reason to alter his conclusions. The HCR 20 inventory is forward-looking and has some protections against lies. The Neo test has more. Risk inventories were never taken in isolation. The applicant's risk score was at the lowest level. Taking all the tests together, he emerged as more of a prudent, practical type.
The applicant's son, who resides at the same residence, was involved in a road rage incident in which he assaulted another person. His firearms licence was revoked following that incident. Because of that, the Commissioner was concerned that should the applicant be licensed to hold firearms, he might not be able to maintain continuous and responsible control over them.
Further, although the criminal charges and interim AVO against the applicant had been withdrawn, the respondent submitted that the tribunal should make its own decision on the material before it, taking into account the objects and intentions of the Act: El-Ashrafi v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 103.
The applicant had submitted in his statement of 3 April 2019 that he had never permitted any argument to escalate to threats of violence or actual violence and had never been violent to anyone in his family. The respondent submitted that if the tribunal accepted his daughter's evidence about the domestic violence caused by the applicant, supported by medical evidence, the applicant's version of events had to be rejected. In addition, that demonstrated that he had either been deliberately dishonest with the tribunal or lacked candour and frankness in his communications with both the tribunal and the Commissioner.
Fitness and propriety are key requirements of a licence holder, and s 11(2) authorizes the Commissioner to revoke a licence when of the opinion that the licensee is no longer a fit and proper person to hold it. If the tribunal accepted that the applicant had been dishonest, significant doubt would be raised as to whether the applicant is a fit and proper person in the context of a firearms licence. The fact that the applicant had never lost his bricklayer licence under the homebuilding legislation did not establish that he is a fit and proper person in the context of the Firearms Act.
The evidence of the applicant's failure to comply with the Regulation for a lengthy period, and the other evidence before the tribunal, showed that the tribunal could not be "satisfied that there is virtually no risk" to public safety, in the sense explained in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 in restoring the applicant's license.
At the hearing the respondent relied all his written submissions and pointed out that there was no dispute about the breach of cll 107 and 108, which provided grounds for a discretionary revocation. No reason had been offered for his non-compliance over a period of five or six years.
Common sense dictates that if there had been years of violent abuse, why would she ask her father to help with a dispute with her then husband? It was significant that she felt safe having him help her and also taking care of her young children.
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].
It is common ground between the parties that the main matters in contention the events that were the subject of Lile Todorovska's report to the police on 9 March 2017 and which led to the three counts in charge H 3893692, two of common assault and one of assault occasioning actual bodily harm. She had made the complaint that a time when she believed that her father and her brother Jovan had been involved in the assault on her partner Steven Talevski at Milperra on 6 March 2017 (his statement is in exhibit R2, pp 26-30). The report led to the issuance of a provisional apprehended violence order on 10 March 2017.
Those charges were withdrawn or 11 October 2017 as the complainant had failed to appear to give evidence at the hearing. One of the assault charges related to an incident on 1 November 2004 at Sans Souci, and the other assault charge and the ABH charge arose from the confrontation at Penshurst on 16 May 2013. In both cases the alleged victim was Lile Todorevski (for clarity and convenience these reasons will refer to Ms Todorevski as Lile).
The fact that all three charges were withdrawn does not mean that the matters alleged should be disregarded by the tribunal. In Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, the Court of Appeal pointed out that the tribunal must make its own decision taking into account the ideas and intentions of the Act. It could consider the evidence relating to the charge, applying a lesser standard of proof than the criminal standard.
The evidence in relation to the coffee table is, however, insufficient to support a positive finding on what would have been a serious assault. Neither Lile nor the applicant states that it happened. Although Det. Nicholls stated that when Lila telephoned to say that she would not be giving evidence at the hearing of the charges, she did not say that they were false, that is not altogether surprising. She might understandably have been reticent about admitting to a police detective that she had made a false report.
She said she had lied to the police and medical authorities because she knew she could not prove the attack on her partner Steve was instigated by her parents, and therefore began telling police that her father had assaulted her in the past, in order to induce the police to believe that the attack was initiated by her family. In oral evidence she said she had wanted to make her father out to be a monster, as she wanted to get away and start afresh. She insisted he had never been violent towards her and she did not believe that he had wanted to kill her.
After the incident at her apartment, she argued with her parents on a daily basis over her intended departure from the marriage and her intention to move in with her current partner. The arguments were mainly over the telephone and involved raised voices, but no threats other than threats to disown her. Following the incident, she attended her doctor and told him about the attack on her partner and her belief that her family had arranged it. The doctor recommended that she take her medicines regularly in order to control her emotions and anxiety. Once she began taking her medication as directed, she became stable and realized that she had done the wrong thing. She had approached police and told them that the information she had provided was wrong and that she had been in a bad mental state. Since then she has been reconciled with her parents and has never been happier.
The applicant's evidence was generally consistent with that of his daughter, but he denied that there had been "a very big argument", or that he had kept telephoning her, that he had said she would bring shame on the family and that he would never agree to her leaving the marriage, or that he would disown her. Yet all those points were set out in his signed statement prepared for the purposes of this application (exhibit A2). He explained the discrepancy by saying that those points were in his statement because she had two children and should remain in the marriage for their sake -- a seeming non sequitur. The written statement, he added, was not correct.
Nevertheless, the evidence as a whole is insufficient to warrant a finding that the applicant violently assaulted his daughter as was originally alleged. The medical records show that she did suffer superficial bruising to the face, but she explained that as being the result of assault by her then husband. That conclusion is also reinforced by the report of the psychologist, Dr Stephen Woods (exhibit A1), which states that his evaluation of the applicant disclosed no history of mental illness or any violent tendencies. Lile had informed him that she had no fears or concerns regarding any possible risk posed by her father or any other family member and pointed out that she visits her parents' home weekly and allows her two young children to stay with their grandparents every second weekend and for a substantial part of the school holidays. Dr Woods was aware of the withdrawn allegations of domestic violence, and while he would have reviewed his recommendations if they had been shown to be established (which I have found they have not), he remained of the view that the test profile results showing the applicant as having the lowest possible assessed risk of violence rating were correct.
The applicant also produced a supportive reference from the Very Reverend Ljupco Karevski, Metropolitan of the Macedonian Orthodox Church, noting among other things that he has never abused alcohol or drugs and is very conscientious and safety-minded. "I can think of no-one who is more likely to handle a gun with more care or maturity", he wrote. He is an active member of the church. Another reference, from the Very Reverend Radmil Josevski, is to a similar effect, noting that the allegations that had been made against him were wholly out of character.
Finally as regards the public interest, there is the applicant's contention that he needs firearms in order to control vermin and feral predators on his property at Coolah. But as is pointed out below, that is not relevant to the present application. It is not disputed that there is a genuine need for firearms in those circumstances. I have previously held that it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the property and the environment. Although the applicant has apparently not yet commenced actual primary production, he has extensive farming experience from his native Macedonia and has obtained, or is in the process of obtaining, all necessary approvals to begin operations. The firearms licence was issued for the reasons of sport and target shooting, recreational hunting and vermin control based exclusively on club membership (exhibit R1, p 54). A firearm may not be used for any purpose otherwise than in connexion with the purpose established as being the reason for possessing or using it: s 7A(2)(a).