Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Bazouni v Commissioner of Police, New South Wales Police Force [2002] NSWADT 100
Beleski v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 397
Bilanenko v Commissioner of Police [2022] NSWCATAD 76
Source
Original judgment source is linked above.
Catchwords
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254Bazouni v Commissioner of Police, New South Wales Police Force [2002] NSWADT 100Beleski v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 397Bilanenko v Commissioner of Police [2022] NSWCATAD 76Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Director-General, Transport New South Wales
v AIC (GD) [2011] NSWADT AP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
EHB v Commissioner of Police [2021] NSWCATAP 63
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 70
Hariri v Commissioner of Police [2022] NSWCATAD 5
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATA
Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
O'Brien v Commissioner of Police [2022] NSWCATAD 2
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (18 paragraphs)
[1]
reasons for decision
The applicant Mr Marco Vaccarella applied to this tribunal on 7 October 2022 for review of a decision by the respondent Commissioner on 22 July 2022 (exhibit R1, p 1) to refuse his application for a category AB firearms licence.
The applicant had never previously held a firearms licence but had applied for one or 27 October 2016, which had been mandatorily refused on 30 November 2016 (id., 3) because he had been the subject of an apprehended violence order (AVO) within the 10 years before that application.
On 26 May 2022, the applicant made the current application for a category AB licence, for the stated reason of participating in shooting sports at his local gun club. That application was refused on 22 July 2022 on the ground that between 1999 and 2019, police had been called numerous times because of domestic incidents in which the applicant was reported to have been involved in threatening behaviour and arguments.
He had been subjected to 8 provisional AVOs or interim AVOs. While the majority of those had been revoked or withdrawn before expiry, and the incidents did not involve misuse of a firearm, the respondent was not satisfied, when those incidents were balanced against the need to ensure public safety, that he would always personally exercise continuous and responsible control over firearms (ibid.).
The applicant on 18 August 2022 applied for an internal review (id., pp 274 ff), but as it was not finalized within 21 days, the tribunal has jurisdiction under s 53(9)(b) of the Administrative Decisions Review Act (1997) (ADR Act) to hear the present application. The applicant then lodged an application for administrative review by this tribunal on 7 October 2022, which came on for hearing on 13 March 2023 and 29 May 2023.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license 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(7) states that "Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[3]
The evidence
The respondent did not call oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), a USB drive (exhibit R2) and cross-examination of the applicant's witnesses.
[4]
Mr Marco Vaccarella (applicant)
In oral evidence at the hearing, the applicant adopted his affidavit filed on 31 January 2023 (exhibit A2) which stated that there had been a number of AVOs taken out on an interim basis and he denied the allegations that gave rise to them. He resisted those interim AVOs as they were all based on false allegations and were either dismissed by the court or withdrawn by the police. There were some AVOs that were made into final orders, which he proposed to explain later.
One AVO was made against him by his previous wife, Stephanie *****, on 13 November 1999 for a period of one year. The background was that he and Stephanie were in the process of divorce and she alleged that he was calling her workplace and verbally abusing her. That was untrue and Stephanie was using the AVOs as a means of advancing her Family Court matter. She made another AVO against him on 3 August 2004 for a period of three years. The background to it was that after court orders had been made for their two children, she did not facilitate the children spending time with him. As a result, he decided to "spectate" the children's netball [scil. soccer] game. He called Stephanie on 3 May 2004 to inform her that he would be making arrangements to spend time with the children, and then attended the soccer game on 15 May 2004 and watched the children play. He attempted to talk to Stephanie about the children spending time with him, but she became argumentative and he decided to wait by the car and left the game. After the game he decided it would be disruptive to the children, given the situation, to have them spend time with him and did not spend any time with them that day. Stephanie then called the police and sought an AVO.
The two children who were alienated from him during the period of the AVO now spend significant time with him and they have a loving relationship. He has no relationship with Stephanie and has not contacted her for many years.
8 An AVO was made against him on 17 August 2004 by his sister, Lucy ****** for a period of one year. He and Lucy had a business together and a short time into the venture, Lucy told him that she no longer wanted to be involved in it. Six months later, she informed him that she wanted the entire business and for his involvement in it to cease. He did not wish to leave the business venture, and his sister began making false allegations about him, alleging that he had made threatening remarks towards their father and their brother's partner. He denied those allegations. Lucy attempted to use the AVO to her benefit and was not afraid of him. He recalled that when police attended in connexion with the AVO, Lucy began hitting him in front of the attending police officers.
[5]
Mr Giuseppe (Joe) Vaccarella
The applicant's brother Mr Giuseppe Vaccarella (who prefers to be addressed and referred to as Joe) swore an affidavit dated 6 March 2023 (exhibit A3) which began by explaining that he has worked at Telstra on state and federal governments secure accounts, including Queensland Police, Fire and Ambulance Services Australia, the Department of Defence, the Justice Department, the Department of Premier and Cabinet and Victoria Police. For those positions he acquired a NV1 security clearance.
After the applicant had separated from his wife Stephanie in 1999, he resided with Joe as he had left that relationship with a handful of possessions, as she had packed up with their children while the applicant was at work. Before the separation, he did suffer from both verbal and physical abuse from Stephanie. It included the use of weapons against him by his wife's family. He also had no support from his own family because of the location of the family home. Stephanie's family also made false accusations about him, including for a police arrest. The accusations were fraudulent and dismissed. The purposes of these accusations was to smear his name for an impending court case. At that time their sister Lucy was supporting the applicant.
In the early 2000's, Lucy was working at Optus and had a business idea she wanted to investigate with Marco and Joe. She proposed their acquiring a fish shop business. As Joe was recovering from a back injury and the applicant was looking for a fresh start, they were interested. Marco's involvement in the business was to be both financial and manual labour, as the shop was rundown and very old and needed a total fit-out, which Marco would be able to do as he had experience as both a project manager and in construction.
The business in Cammeray was acquired and construction lasted some eight months. Marco and Joe attended to the fit-out with the assistance of consultants and contractors. Lucy did not assist in this and continued to receive a salary while Joe and Marco were not receiving any income and were investing in the business. During the construction period, Marco and Joe spent months at a friend's fish shop located at Forestville to learn and gain the knowledge and skills to operate a fish shop. Lucy did not participate in that, and her lack of interest in the progress of construction or in learning the necessary skills was both concerning and puzzling at the time.
[6]
Ms Kylie Smith
Ms Kylie Smith swore an affidavit dated 6 March 2023 (exhibit A4) in which she began by saying that she is a friend of the applicant and was a partner of his for 10 years, and they had two children together. He was an extremely hard-working, determined man who always provided for their family and he is an excellent parent.
In the time they were together, she does not recall seeing him drunk, he seldom even has a beer and he lives a clean and healthy life. He is a sportsman, so if he wasn't working or with the children, he was always on the go doing something like golf or exercise.
In the time they were together he never once made her feel scared or intimidated. They had their disagreements, but it never got out of hand. Marco had never assaulted her. When he met their neighbour Laura *****, life got a bit awkward for all of them. She did try to warn him as she could see that Laura was not quite right and loved alcohol far too much, also she lived across the road. He eventually left their house to be with her. After that he thought it was best that Kylie and the children stay at their house. He continued to pay the mortgage and the bills, as Kylie was not working and so could look after the children as a full-time mother.
It did not take long for Laura to start breaking him and her drinking and irrational behaviour had a massive effect on him. They consequently separated. To this day they still remain good friends and she knows he would help her if ever she needed him. The children adore him as a father and she thinks he is a good man.
In oral evidence by AVL on the adjourned date, Ms Smith adopted her affidavit. Cross-examined by Ms Chenhall, she said she had not been afraid of the applicant, but admitted that she had twice called the police. In relation to the August 2014 incident when she had reportedly claimed he had verbally abused her and assaulted her, she said she could not recall. She was not scared and he had not assaulted her but she wanted him out of the house and had kicked at him, whereupon he had grabbed her leg, causing her to fall over. She had wanted him out of her space because she was not sure if she would be assaulted. She had fallen on the floor after he had grabbed her leg to stop her from kicking him.
It was put to her that he had already left when she called the police to get him out of the house. She replied that he was probably outside in the yard. She had told the police that they were both arguing and she had punched him in the face because he was very close to her. Reminded that she had told police that she was afraid of being assaulted, she replied that she did not know what would happen but was not really intimidated at the time. She had hit him, and all this was happening when he was involved with Laura. Ms Smith was not working at the time, but was a full-time mother.
[7]
Applicant's submissions
The applicant adopted his written submissions filed on 31 January 2023 (exhibit A1) in which, after outlining the background and the applicable law, he submitted that he is a fit and proper person to hold a licence. He is a respected business owner who has been operating in the Northern Beaches and eastern suburbs since 2002. His rendering business, Rock On Render Coatings, has been registered since 2008.
He was involved in the New South Wales Rural Fire Services from about 2000 to 2002 and from 2016 to 2019 he started a program with the Australian Children's Music Foundation whereby he would pay for disadvantaged children's musical instruments at Lalor Park Public School.
His activities have not brought him to the attention of the police and his only interaction with police has been in relation to AVOs and a count of driving with the presence of drug in 2016, which arose from a random breath test, the drug being marijuana. He has no disclosable court outcomes. Since the driving with a drug offence in 2016, he no longer uses marijuana or any other illicit substance. He rarely consumes alcohol and not to excess.
He does not have a good driving record, but that has to be viewed through the prism of a self-employed rendering business owner who spends a large amount of time driving. His recent driving offences in 2022 are an insecure load and exceeding speed by 10 km/h. He has had more serious speeding offences in 2001 and 1997 but has learned from his mistakes and has not disobeyed a speed limit to such a great extent since 2001. Given the time he spends on the road, he has also been subjected to a number of breathalyzer tests and has never incurred a PCA. He is of good character and reputation and the general community could have confidence that his conduct would be proper in relation to firearms.
He also satisfies the public interest test and there is virtually no risk when the circumstances leading to the AVOs are carefully examined. He has had two final AVOs against him by his previous wife Stephanie in 1999 and 2004. He asserts that they were made on false allegations in order to further Stephanie's position in her Family Court matter. Additionally, it should be noted that her allegations do not include physical violence. Ultimately, those AVOs are from approximately 23 and 18 years ago and the applicant currently has no relationship with Stephanie. There have been no incidents with Stephanie since 2003, and the two children who were alienated by Stephanie during the family law matter now have a strong relationship with him.
[8]
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 of a licence or permit: s 75(1)(a). Although the internal review requested by the applicant has not been resolved, it is deemed to have been finalized by s 53(9)(b) of the ADR Act. The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[9]
Fit and proper person
Although the respondent's case rested chiefly on the ground of public interest, fitness and propriety was mentioned in the respondent's opening address and it is appropriate to consider the principles applicable to that ground, although, as will be explained below, little turns on the point as the construction and factual issues raised by both grounds are virtually identical. The proposition therefore is that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides that a licence must not be issued unless "the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace".
The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, the High Court gave a general overview of the concept and the discretion that it embodies:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding .in Hoffman v Commissioner of Police, New South Wales Police Service that a person is not fit and proper to undertake the activities in question.
[10]
The public interest
Thus the respondent's case for revocation is also that it is not in the public interest for the applicant to hold a licence within the meaning of s 11(7).
The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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].
[11]
AVOs
In addition to the event reports outlined below, there are many incidents relating specifically to AVOs. On 27 October 1999, he was served with an AVO for the protection of his ex-wife, Mrs Stephanie *****. She alleged that since the divorce proceedings had started, he had telephoned her premises at work on a number of occasions and verbally abused her. She said she was intimidated by his abuse. Police advised her to act through her solicitor, but that approach did not succeed, nor did an appointment with the chamber magistrate. Consequently, she requested and obtained an AVO (id., 18 - 19, event E7428337). In cross-examination the applicant said that the incident had not happened, as she had made it up. She telephoned police regularly.
On 26 May and 9 and 16 June 2004, he was served with further interim AVOs for the further protection of his ex-wife, Stephanie as well as her new partner, Shayne ***** , and the children that she shared with the applicant. On 3 August 2004 he was served with a further AVO for the protection of Stephanie's family. It was in force for three years and expired on 30 June 2007. On 10 August 2004, he was served with an IAVO for the protection of his sister Lucy. On 3 January 2007 he was served with an AVO for the protection of Mitchell , Craig, Toni **** and Mark****. It remained in force for two years and expired on 13 December 2008.
On 9 June and 3 July 2018, he was served with provisional and interim AVOs naming his then de facto partner Laura as the victim. A further interim AVO was served on him for the protection of Laura on 5 February 2019. There were also AVOs served on Laura in 2017 naming him as a victim. His contention in relation to the AVOs against him was that they were made on the basis of false allegations, for financial or other gain, including in Family Court matters.
[12]
Domestic incidents
The main ground on which the respondent relies is that the applicant has a lengthy history of domestic incidents involving numerous different people which required police intervention. His record includes involvement in nearly 50 event reports from the Computerised Operational Policing System (COPS) and three police fact sheets for use in court proceedings. They included charges of assault occasioning actual bodily harm and common assault in November 2018 and a charge of contravening an AVO in March 2000. All charges were dismissed after hearing (exhibit R1, pp 5 - 6), and the respondent concedes that the applicant has never been convicted of a non-traffic offence.
Event report E7923109, 28 November 1999 (id., 23 - 26), dealt with a dispute at handover time for the children in which he allegedly grabbed Stephanie by the arm and seized the car keys from her hand, preventing her from leaving the house. He had chased her and grabbed her by the arm, pulling her back to the vehicle. Her 11-year-old daughter came to her assistance and was pushed away by the applicant. He then threw the car keys inside the car, and when she attempted to drive away, he removed the keys and threw them in the bushes.
Subsequently he telephoned her eight times during the day, and later that night five times, leaving messages that he would go for custody of the children. During one of the calls he said "I will come down to your work tomorrow and embarrass you, and make a scene". She said she was in fear of her safety and that of her three children. The applicant in his evidence said he did not recall the incident and the alleged taking of the car keys and that "probably none of it is true". He denied the police assessment that he had no respect for the terms of the AVO. He had not repeatedly telephoned her, adding that "It was a perpetual thing with her".
Asked about repeatedly telephoning her after pickup, he replied that it was not common practice and that he could not recall it, nor did he recall saying he would come to her work and embarrass her by making a scene. She had "pretty much" made up all her allegations in the 1994 - 2004 period, to help with her Family Court proceedings or to deter him from having contact with the children.
On 13 February and 23 May 2002, he was served with interim AVOs (IAVOs) for the further protection of Mrs Stephanie ***** (events E13479125, 14 February 2002, id., 47 - 48, and E14798206, 23 May 2002, id., 54 - 55).
[13]
Violent incident of 30 November 2018
Event E70007415, 30 November 2018 (with charge H70447839, id., 199 - 208) is of significance because it is relatively recent and resulted in the applicant's being charged with common assault and assault occasioning actual bodily harm.
The police fact sheet records that on 30 November 2018, Laura and Michael ***** were asleep in Laura's vehicle in the front yard of her ex-husband's residence. They often slept in the vehicle at that location after night shift as Laura's children resided at the premises with their father. The applicant lived opposite. At about 9:30 am the applicant entered the front yard through a closed gate and approached the vehicle, seeing both parties inside. He said he had wanted to "get stuff off his chest" following the breakdown of their relationship. He opened the driver's side door and began verbally abusing Laura, who awoke to find him trying to pull her out of the vehicle. That caused Michael to awaken also, and he immediately started recording the interaction. The applicant was heard to call both victims of "sewer rats" and "turd".
They told him to leave as they were trying to sleep, but he continued to abuse them. Michael got out of the passenger side and walked around to where the applicant was standing in the open driver's door. It was alleged that the applicant then punched Michael just below the left eye. A scuffle ensued and both fell to the ground. The applicant was on top of Michael, who was flat on his back. He allegedly slammed Michael's head numerous times on stones and gravel beneath him. Michael attempted to get up but could not do so and instead pulled him in close and bit him on the left cheek. When that did not cause the applicant to let go, he bit him again on the right side of his chest. Laura came to Michael's aid and kicked him in the ribs to get him off Michael. Eventually he stood up and left the scene.
Police noted that Michael had sustained injury to the back of his head consistent with stones and gravel striking it. He was missing a large amount of skin and was bleeding from cuts and scrapes on his head, elbows and arms. After his arrest the applicant denied assaulting or striking the victims at any time. When asked why he had gone to the premises, he said "I needed to get stuff off my chest. I was emotional. She totally did a number on me". He repeatedly said he had previously been assaulted by Michael and said he had been "in fear for my life" as Michael was much bigger than him, but could not account for how Michael had suffered his injuries.
[14]
Incident 7 September 2019
Another relatively recent incident occurred on 7 September 2019 (event E 71023060, exhibit R1, pp 245 - 253). Following a telephone conversation that had led to an argument, both parties agreed to meet at Laura's address. When the applicant arrived, he observed Laura asleep in her vehicle parked in the driveway. He woke her and an argument ensued. The parties provided different versions of what followed. Laura stated that the applicant had struck her in the face and neck a number of times with palm strikes and attempted to pull her from her vehicle by her hair.
The applicant had stated that he at no time struck Laura, but rather that she had struck him in the face with the back of her hand while waving her arms about in anger. He had then left the scene. He then contacted police and gave them that version of the event. Police could not sight any injuries on Laura, who told them that the incident was witnessed by her daughter B****, aged 10, who said she had seen the applicant outside yelling at her mother and when asked if she had seen anything else, she said she saw him hitting her mother but could not recall specific details about how he was doing so. Because of the conflicting versions from the respective parties and the lack of an independent witness (Laura having declined to allow her daughter to be interviewed) no charges were laid.
Cross-examined about the allegation that he had struck Laura in the face and neck a number of times, he answered ambiguously that "I don't really hit people". He said Laura and her daughter were not telling the truth about the assault. Laura would have had a mark on her if he had assaulted her. He said his relationship with Laura was not all bad, but drink was the issue. As regards Stephanie, she had a big motive for not telling the truth. She thought she would be set for life after the divorce - no money, no kids. There had been many other incidents.
[15]
Traffic record
Mr Bellingham submitted that the applicant's traffic record was "unremarkable" especially for a tradesman who drives a great deal for his work, but the fact is that in the 34 years since he obtained his learner permit, he has accumulated some 22 violations, three suspensions, one cancellation (later rescinded) and three warning or courtesy letters. Mr Bellingham very properly conceded, and it was obvious, that the applicant's evidence about his record was flippant.
The infringements include not stopping at a red arrow, disobeying a sign indicating an emergency stopping lane, not wearing a seatbelt and speeding. As recently as 2016 he was found guilty of driving with a prescribed illicit drug present in his system (dismissed under s 10). The respondent pointed out that in O'Brien a firearms licence application was ultimately refused by the tribunal on the basis of the applicant's poor traffic record. The applicant countered that O'Brien's driving record was much worse than the applicant's. In my view his record, though unmeritorious, does not rise to the level of carrying decisive weight in the public interest and fitness and propriety evaluation.
[16]
Character evidence
In his character evidence his brother Mr Joe Vaccarella said that before separation, his brother suffered both verbal and physical abuse from Stephanie, which included the use of weapons by his wife's family. His sister Lucy was troublesome and undermined the fish shop business that the applicant, Joe and she had established. The applicant had needed to start afresh and launched another business that grew and developed in the building industry, in which he employs staff. Lucy was a spiteful person with animosity and anger directed towards the family.
He knew nothing about Stephanie's allegations of domestic violence by the applicant but "would be surprised" if they were true. His knowledge of Stephanie's assault on the applicant came from what he had been told. His brother Marco would not threaten anyone with a pipe as was alleged. He had never witnessed an instance of violent behaviour by Stephanie that he referred to, and never personally felt threatened.
Ms Kylie Smith deposed that she is now on good terms with the applicant and was a partner of his for 10 years, and they had two children together. He was extremely hard-working and determined, always providing for the family and he was an excellent father. In the time they were together he never once made her feel scared or intimidated and had never assaulted her. But he was broken by his association with Laura, her drinking and irrational behaviour, and they consequently separated.
In cross-examination she admitted, however, that she had twice telephoned the police about domestic issues. In relation to the August 2014 incident when she reportedly claimed that he had verbally abused her and assaulted her, she said she could not recall, but was not scared and he had not assaulted her. She had wanted him out of her space because she was not sure if she would be assaulted. Again, on 26 June 2016 she had told the police that she was scared, but in cross-examination said she was scared because she had the children.
Mr Peter Northcote in his affidavit dated 11 May 2023 deposed that he has known the applicant for at least 10 years and in the past five or six years they have become close friends. His generosity and care for members of the society who may be less fortunate is something to be admired. Mr Northcote and his partner started a music program at Lalor Park Primary School about six years ago.
[17]
Evaluation
The documentary evidence in this case records almost 50 incidents of violence, threats or abusive behaviour in which police intervention was required and the applicant was involved. He was subject to four final AVOs and eight interim or provisional AVOs that were withdrawn or dismissed. He has not had a final AVO since 2007. In several instances he was the victim and not the perpetrator and had AVOs issued for his protection. For present purposes and for the sake of clarity it is expedient to list the main events outlined above for which there is probative evidence (though disputed) of violence or threat of violence on the part of the applicant. Much of it comes from contemporaneous police records. Other details of the incidents are omitted.
28 November 1999: the applicant grabs Stephanie with both arms, drags her down the street and seizes her daughter by the arm.
4 March 2000: in the course of an argument with Stephanie, he grabs her on the right breast and stands over her in a threatening manner.
22 December 2001: the applicant threatens a neighbour who made a noise complaint saying he would "hurt anyone in the household" and would "split [the neighbour's] melon".
28 January 2003: in the course of an altercation with Stephanie's brother Craig, the applicant threatens Craig and initiates violence by head-butting Craig three times, causing injury.
3 May 2004: police note that the applicant had also assaulted Stephanie in the past by grabbing her and spitting at her (id., 73).
31 May 2004: the applicant says to his father that he is going to chop off the head of his sister Lucy and later tells their brother Joe's partner "If I see Lucy I'll beat her with a pipe".
27 April 2017: the applicant knocks Laura to the floor twice after she had deliberately damaged his car, and she retaliated by injuring his genitals.
30 November 2018: the applicant assaults Laura by grabbing her arm and attempting to pull her out of her vehicle; he punches Michael just below the eye and slams his head numerous times on the stones and gravel underfoot, causing injury.
7 September 2019: the applicant cuffs Laura several times and attempts to pull her from her vehicle, witnessed by Laura's daughter.
[18]
Order
1. Decision under review affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 June 2023
Parties
Applicant/Plaintiff:
Vaccarella
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
He no longer has any relationship with Lucy and has not had any interaction with her since the AVO. Following the steps she took to obtain an AVO against him through false allegations, his immediate family no longer associated with her.
An AVO was made against him on 3 January 2007 for a period of two years for Craig ****, Mitchell *****, Mark ***** and Toni *****(exhibit R1, pp 104 - 106). Toni and Mark had been renting his parents' home and caused a great deal of damage to it. The applicant attempted to resolve that issue by contacting them, but did not act inappropriately towards them. He had not made contact with Mitchell, Mark, Toni or Craig following the AVO in 2007.
An interim AVO was taken out for his protection against a former partner, Kylie Smith [who gave evidence in this case], on 30 August 2014 when she punched him in the face while intoxicated. He and Kylie had two children together and for their family's sake he did not wish her to be charged or served with an AVO. He let his request be known to the police.
There had been a number of incidents involving Laura ***** where she had made false allegations against him. She was an alcoholic who would drink to excess and then become aggressive towards him and destructive. During those episodes when Laura was dangerously inebriated, she would often call the police and make false allegations about him. It was a toxic relationship that was difficult for him to leave as she was his neighbour and could be very apologetic after each outburst. She would often assault him during those drunken episodes, which resulted in police obtaining a final AVO for his protection on 7 July 2017 after she damaged his car and assaulted him by pushing him, squeezing his testicles and tearing his scrotum. He no longer has any relationship with her and has been able safely to leave the relationship.
He had never been found guilty of breach of any AVO or of any violent offences. He had never had any final AVO against him since 2007. He had never previously owned a firearm.
He had only been found guilty of one offence, driving a vehicle with the presence of an illicit drug, being marijuana, on 15 March 2016. Following that charge he stopped consuming marijuana and does not use any illicit substances. He also drinks very rarely and not to excess.
He has a number of driving offences and his most recent contraventions have been for driving a vehicle with an insecure or overhanging load and speeding by more than 15 but less than 30 km/h. He has had three exceed speed by more than 15 km/h but less than 30 km/h in 2001 and 1997. He is deeply regretful for those actions and has ensured that he does not replicate them after his last charge in 2001. As he runs his own rendering business, he spends large amounts of time driving for work and on the road. He has submitted to a number of breathalyzer tests and has never driven with alcohol in his system beyond the legal limit.
He joined the New South Wales Gun Club Ltd on 25 May 2022 with the intention of participating in target shooting. He intends only to partake in shooting sports and has no interest in any other kind of shooting activities. He has re-joined the gun club for 2023 in the hope that he will be able to participate in sports shooting this year. He has sustained a number of injuries over the years and needed to find an alternative sport. His coach introduced him to sports shooting and he finds the concept enjoyable. Because of his injuries, he is limited in the sports that he can participate in and sport shooting is not hard on his body.
He has been self-employed for most of his adult life and has employed many people. He is an established renderer and has had his company Rock On Render Coatings ABN 56 995 457 137 since 2008. He works mainly in the eastern suburbs and subcontracts to a number of people for his jobs. He is well respected in his field.
He has previously been associated with the New South Wales Rural Fire Services and has collaborated with the Australian Children's Music Foundation. He started a project with the foundation from about 2016 to 2019 whereby he would pay for disadvantaged children's musical instruments at Lalor Park Public School. He continues to donate to the foundation from time to time, but is now more focused on raising his child and maintaining his business after COVID - 19.
In evidence in chief at the hearing the applicant adopted his affidavit and added that his preparation for the hearing had been impaired because he had been in hospital having surgery and had other medical treatment for a period of seven weeks because of serious infections he had received through having sea urchin spines lodged in his foot. He had renewed his membership of the New South Wales Gun Club and as a law-abiding person would follow the requirements of the Firearms Act if he were issued with a licence.
Cross-examined by Ms Chenhall on behalf of the respondent, he said that he did not think he was under the influence of marijuana at the time he was found driving with the drug in his system. "There was no cell waiting for [him] in supermax", he said. It was a long time ago and he had been unaware at the time that the drug remains in the system for at least 48 hours as it was not then commonly known. He had not argued with the police about it, though.
He had a long driving history, but nothing overly serious by way of violations. Everyone has infringements, he said. He had never lost his licence and had a few minor contraventions, but one could not judge character from that. He had received the unsecured load infringement because he had one shovel on the back of his utility. He had not contested the infringement because he had a business to run and "some people have other things to do".
Asked about a suspension warning letter he had received just two months after the insecure load violation (exhibit R1, p 10), he replied that he had had a quick look at it, but "Do you want me to frame it?". He received a great deal of mail. He did not recall that his driver licence had been suspended in 2006 (id., 11) or that his motorcycle licence had also been suspended or that in 1994 his licence had been cancelled, then restored (id. 12).
All the AVOs had been a misuse of the process. Stephanie was seeking to strengthen her Family Court position, and Laura was a raving alcoholic. He "pretty much" did nothing wrong. The police made up their minds in advance on domestic violence calls and the man was presumed guilty, which police regarded as erring on the side of caution. They just "handed out" AVOs - he knew, as he had been on the receiving end of them often enough. Not one of the events reported was true, "pretty much".
In relation to event E7815819, 4 September 1999 (id., 15) he said that he did not recall the event, but had gone to the house, although it made him vulnerable every time. He chose not to make arrangements for picking up the children as it was degrading. He had telephoned the police when the matter got out of hand and he thought that if police were called by Stephanie, he would be likely to go to jail. He was not aware that police had taken no action on the matter as running his business made him time poor, and because of his medical problems he had been "under the weather" for 7 weeks and had not read exhibit R1.
Event E7428337, 30 September 1999 (id., 18 - 19) did not happen, he said. Stephanie had made it up. She telephoned the police regularly. He did not recall event E7923109, 28 November 1999, (id., 24 - 25) or the claimed throwing of keys into her car. Probably none of it was true. She never came on her own, but always in two or three carloads. The claim that he had telephoned Stephanie eight times that day and another five times that evening (ibid.) was untrue. Nor was it true that he had no respect for the conditions of the AVO: "This was a perpetual thing with her". As to her allegation that he had repeatedly telephoned her after pickup, he said that he could not recall it but it was not common practice and was unlikely. If she had brought witnesses with her, it was intimidatory and not because she was in fear of him. She had pretty much made up all the incidents between 1994 and 2004 to help in her Family Court proceedings or to deter him from having contact with the children.
Event E8754611, 28 March 2000 (id., 34), he said was one of many allegations that took place a long time ago. As to whether he had grabbed Stephanie by the right breast, he said he did not recall, but then said he did not do it and even though he could not recall specifics, he did not grab her in that way. Event E8986128, 18 March 2000, (id., 40) was one of several cases in which he had contacted police but they had not taken action. He had declined to participate in a plan for supervised access, out of principle.
Event E13264656, 22 December 2001 (id., 45) arose out of a noise complaint against the applicant and another by Mr Anthony ****, following which the applicant is recorded as saying to him "If you call the police again I will hurt anyone in the household. I will split your melon. I am a kickboxer". The applicant said he vaguely recalled the police coming, but the threat was "made up".
As regards the report that on 13 April 2002 at the time of pickup he had yelled at Stephanie "I'll see you in court. You're a slut and an idiot" as well as some other abuse (E14443674, id., 51), he said he did not recall saying those things and they were "Lies, most likely".
Event E16668018, 28 January 2003 (id., 59 - 61) concerned an affray between the applicant and Stephanie's brother Craig ****. The applicant said he had been sitting in his car waiting for the children to come out of the house and had stepped out of the car because he considered that he was a sitting target. He was fighting for his life and Craig had his car keys. The applicant had tried to telephone the police, attempting to reach for his telephone. A lady walking past had asked if Craig wanted her to call the police, but the applicant could not recall whether or not Craig had said yes.
There had been later incidents when he had called the police in relation to Craig. Stephanie had set up an ambush, with Craig hiding in the bushes. The police were not interested in his story. Asked whether he had abused the police in connexion with the incident, including saying "I have been sodomized by Miranda police for years", he replied that he had little luck with the police as he was an "ethnic" and the police are racist. He might have used offensive language, however. He said he did not recall whether he had continued to call police and pressure them into taking action as reported (id., 61). He was peeved because someone had tried to kill him with a mattock handle. He had to protect himself and was vulnerable sitting in his car. The applicant was arrested but not charged in relation to the matter.
He said he had no recollection of saying to Stephanie on two occasions that he would "get the boys" and take them away, causing her to take the children out of school for a day and causing a confrontation with her and other parents at a soccer match (event E67882295, 15 May 2004, id., 73). He said her position was that if she could not get money from him, he would not have access to the children. He had not approached her and was not taking pictures with a camera as he did not own a camera, and the other parents had not intervened. He then said it was possible he had tried to talk to her at the end, as he had said in his affidavit (exhibit A1, para 8) but did not recall waiting for the children by the car, although in his affidavit he had said that he did. He then said he had "Not necessarily" been waiting by the car.
In relation to report E20592237, 31 May 2004 (id., 81) in which his sister Lucy quotes him as saying to their father, "I'm going to chop her [Lucy's] head off, put it in a plastic bag and send it to Dural" and had called their brother Joe's partner, saying "If I see Lucy, I'll beat her with a pipe", he said he did not recall any of it, that she made false allegations and that his brother Joe would support him in that. He had never had any relation with Joe's partner. The police had been forced to restrain her and "get her off" him. He agreed that subsequently an AVO had been obtained against him with Lucy as the person in need of protection (id., 94).
Event E23038651, 7 January 2005 (id., 101) describes a visit with a friend of the applicant's to Lucy's business to collect a washer belonging to the applicant. The friend had telephoned Lucy to make the arrangements. She said she had no objection to the friend collecting the washer but noticed the applicant waiting out the back and told him that he was not supposed to be there because of an ADVO in force. She claimed that he said, "I can do whatever I want". He said "I don't necessarily recall" the incident, but she had not told him not to loiter near the premises. He did not know for sure about the machine and did not recall saying "I can do whatever I want".
He said that event E29456742, 3 January 2007 (id., 105) related to a situation where there were tenants in the family home who were not paying any rent and were damaging the building. There was no altercation, but his parents had cried when they saw the damage. He could not recall the language used, but remembers that there were graffiti in the house. He had just asked them to get out and had not threatened them. He said an AVO had been issued because there was a female involved.
In report E837537190, 30 August 2014 (id., 111), Kylie Smith had said the applicant was verbally abusing her and had martial arts equipment in the house and was a professional kickboxer. An AVO had been issued for his protection. He had been seeing Laura, and Kylie had been drinking and became upset, punching and kicking him. There might have been some discussion but alcohol was the catalyst. He himself might have had one or two beers. He had gone there to try to calm the situation down, but she "vented" and called the police. Kylie had told the police that they had been arguing but she had no fear of him. He had been practising martial arts but was never a professional kickboxer, though he probably had martial arts equipment in the house.
As to event E58171761, 6 May 2015 (id., 122 ff), he said there had been many incidents with Laura because she drinks a great deal and drives. He had taken her keys for her protection but was not sure if he had deliberately hidden them.
An episode that took place over the time between 24 and 29 December 2015 concerned an incident in which Laura's puppy had bitten the applicant's dog, causing an infection. On the 29th, the applicant had gone to see Laura and allegedly became verbally abusive towards her, assaulted her puppy and taken her telephone off the bench. Asked whether he had become abusive, he said he was upset because his dog was half dead. He had not taken Laura's telephone. He denied that that there were several instances of him taking keys or telephones from females (E59921503, id., 131).
The applicant had no recollection of event E62024762, 26 June 2016 (id., 139 - 143) in which the applicant's de facto Kylie Smith had sought police assistance as she was afraid following a verbal argument over the children's homework. Kylie wished to have police presence when she returned to the house to collect some belongings for herself and the children, as she wished to stay elsewhere for the night. The police detected no domestic violence offence and took no further action. He did not think Kylie had feared for her safety and said he was stuck in the middle between Kylie and Laura, who used to fight constantly. He said he was "stuck" as Laura lived across the street. It was a "bizarre and awkward" situation that he had created, but "It isn't an offence, is it?"
When it was put to him that his relationship with Laura was violent at times, he replied that there was much drinking involved, up and down, but he was not doing the drinking. Event report E65076869, 26 April 2017 (id., 151 - 154) describes the applicant as the victim and Laura as the accused. Laura was kicking and damaging the applicant's vehicle. The applicant called the police and forced her to the ground with his forearm, saying "You are useless, you are a child, you are useless". In the course of this altercation Laura squeezed the applicant's testicles hard, tearing his scrotum and causing it to bleed profusely. He said in evidence that he had knocked her down because she was attacking him, and that he did not get into rages. She also smashed her way into the house, as she did not have a key and was not living there at the time. No charges were laid against Laura because the applicant declined to make a statement.
As regards event E68169456, 8 June 2018 (id., 166 - 169) Laura had collected the applicant for a pre-booked dinner reservation at the "Mexicano" restaurant at Narrabeen. An argument ensued and the applicant seized Laura's telephone and threw it on the ground, breaking the screen, then kicked it across the room. He got on top of Laura and held her down, using physical force with his arms on her shoulders, restricting her from getting up. Following his arrest and interview, he denied all allegations of assault and damaging Laura's telephone, saying she had thrown the mobile telephone, thereby damaging it. Police laid no charges because of the conflicting accounts but applied for an AVO. At the hearing the applicant said Laura had been drinking and driving, consuming more drinks at the Mexicano. They went home, where she threw the telephone at him and he left. He remembered the incident well as he knew he had to get out. The assault described did not happen.
He did not recall the incident on 3 August 2018 (E260744696, id., 181 - 182) which reports that he repeatedly telephoned Laura telling her what "a good bloke he was" and how much he did for her when they were together. She replied "Well if you have moved on, why do you keep calling me?", whereupon the applicant ended the conversation and said "Well, I'll see you in court" and added that his lawyer would make her look stupid as he had witnesses. He said he had not been intimidating her and did not call her, and she "made up things".
Event E299713294, 30 August 2018 (id., 185 - 186) lists the applicant as the victim of threats by one Michael *****, who was seeing Laura, while E 68388344, 31 August 2018 (id., 187 - 191) states that he banged on Laura's car window, then forced it open to verbally argue with her. An argument with Michael **** ensued. In evidence the applicant said that he had just wanted to say hello and was not harassing her. He planned to leave her alone. Event E 71572981, 22 September 2018 (id. 192-193), also lists the applicant as the victim of an assault by Michael ****, accompanied by some other men. He denied that he had gone to Laura's place using the return of her dog as an excuse to see her. He had returned the dog because it was in his yard.
Event E69808272, 30 November 2018 (id., 197 - 199) led to his being charged with assault occasioning actual bodily harm against Laura and Michael. The report stated that he had tried to pull Laura out of the car by her arm and in a scuffle with Michael had slammed his head numerous times on the stones and gravel beneath him, causing injury. Michael had retaliated by biting him twice. He said he had approached them in their car, and guessed that they were drunk, as he saw beer cans on the dashboard. He had some concern for Laura as they were still communicating and he did not know that she was asleep. It was the only way to talk to her. He was not sure whether he had any need to speak to her, although he wanted to get some matters off his chest and preferred to do it in person, not on the telephone. He had tapped on the window but did not open the car door or grab Laura's arm. A few words were exchanged, but no abuse. He had not punched Michael at all or slammed his head on the ground. Michael had bitten him on the face. He admitted that as he and Laura had been together for five years, he still cared for her to an extent.
When it was put to him that he could have simply left the scene, he said that before he knew it, he had Michael biting his face. He had been verbally assaulted by him and Michael thought he could get the better of him. He did not claim to be a black belt. He had not called Laura and Michael "sewer rats" or "turd". In an incident on 22 April 2019 at the Snowy Mountains Motel in Cooma, Laura and the applicant became involved in a verbal argument about going to the pub earlier in the night which led to Laura's allegedly throwing her dinner on the floor and over her own vehicle (id., 237). He said he had told her that he was ending the relationship and he moved up the North Coast, but she found him.
He denied the incident on 7 September 2019 (E71023060, id., 249 - 250) in which he had allegedly cuffed Laura several times and attempted to pull her from her vehicle by her hair. At the time he denied that he had struck her, but that on the contrary she had struck him in the face with the back of her hand while waving her arms about in anger. At the hearing he simply said he did not really hit people. Her daughter had not been telling the truth when she said she saw him striking her mother, saying that if he had, she would have had a visible mark.
He said his relationship with Laura was not all bad, but drink was the issue. Stephanie had a motive to not tell the truth, as she thought she would be set for life after the divorce. Her position was that if she received no money, he would have no access to the children. There had been many more incidents.
In re-examination the applicant stressed that the match referred to in exhibit A1, para 6, was soccer, not netball. He had never been a professional kickboxer, but did compete as an amateur. His work with Lalor Public School was voluntary, in conjunction with ACMF. He had funded the program for two years and thought there could be records of his participation at ACMF. He had been a member of Belrose Rural Fire Service in his 30s after his divorce from Stephanie, in 2000 - 2001. He had last seen Laura five or six weeks ago but has not had any relationship with her since about 2021.
The business finally opened in December 2002 and flourished in the first few weeks, but it was evident that Lucy just wanted to be in charge without knowing how to operate a business. She assigned herself minimal duties and did not wish to share the workload. As a result, disagreements increased and staff began to refuse to work with her because of her condescending nature. Customers began to notice and avoided coming to the shop, which slowed down the business. As a result, at times the rent was in arrears. Lucy eventually left the business in about February 2004, and over time business had picked up.
Six months after Lucy had left the shop, the police came to the business with an AVO for her against Marco. Lucy followed the police onto the premises. Marco was told to leave the building with what he could carry and not return. The reason for the AVO was not apparent, and all he had was a car to sleep in, with no financial backup as all his finances were directed into the business. Lucy had preyed on the fact that Marco's name was not on the lease at that time. Marco did not act towards Lucy in the way she alleged in her AVO.
Marco again needed to consolidate and start afresh. He launched another business that grew and developed in the building industry. He employs staff, the bulk of the work being on high-end housing, and has a great reputation and is highly regarded among his peers.
Lucy was a spiteful person with animosity and anger directed towards the family and extended family and took pleasure when she upset anyone. That increased after she had a dreadful car accident on the Harbour Bridge in [indistinct]. Her partner at the time was driving and suffered severe injuries that took years to recover. Since then she had never engaged with family activity, had any long-term relationships and had not been seen or heard of for approximately 20 years, not even when their father was close to death from a brain aneurysm.
In cross-examination Mr Joe Vaccarella said that his knowledge of Stephanie's assault on the applicant came from what he had been told. Her family had ganged up on him. He did not know how many police interventions there had been, but they went both ways.
He said he did not know about Stephanie's allegations of domestic violence by the applicant on 28 November 1999 (E7923109, id., 25 - 26) but "would be surprised" if they were true. The business was being run by the applicant and Lucy, who was telling his partner "rubbish" which was pivotal in making his own relationship difficult.
Nobody was running the shop at the time of the 31 May 2005 report, as it had folded. Marco would not threaten anyone with a pipe as was alleged. Lucy incited hatred to help with her cause. He had never witnessed the violent behaviour by Stephanie that he referred to, and never personally felt threatened.
Ms Chenhall then referred to event E62024762, 26 June 2016 (exhibit R1, pp 139, 141 - 142), which involved a verbal argument relating to the children's homework. The witness had collected the children and left the house, telephoning police and waiting outside. As she had been a defendant in a previous AVO, she wished police presence when she returned to the house to collect some belongings for herself and the children, to stay elsewhere for the night. She did so with no incident or dispute with the applicant. She had told police that she was scared, but said she was scared because she had the children. They had separated. He had remained in the house and she had left and had not asked him to leave. Although they had separated, there were no current legal proceedings.
Ms Smith said she could not comment about incidents involving Laura or Stephanie. She did know, however, that Laura had an effect on him, through what he said and from his appearance. He was traumatized and upset. The children are currently aged 11 and 16. Declan, 16, lives with the applicant, who pays no child support at present because she is working. While they were together he made the mortgage repayments and paid the bills for the whole time.
The applicant also tendered a character affidavit by Mr Peter Northcote dated 11 May 2023 (exhibit A5), the contents of which are outlined below.
A further final AVO was made against him by his sister Lucy on 17 August 2004. The applicant submits that this AVO was made for financial gain in order to oust the applicant from a joint venture and that Lucy was not fearful of him. Further, he deposed that he was previously assaulted by Lucy in the presence of the police when they were in attendance in relation to that AVO. Lucy made a further complaint against him to the police on 30 August 2004 and 7 January 2005 in relation to that AVO, and no action was taken by police as they determined that he did not breach the AVO. The applicant has not had any relationship with Lucy since the AVO was made and his immediate family are aware of Lucy's allegations in relation to the making of the AVO and have chosen to no longer have any relation with her.
The last final AVO against the applicant was made by Mitchell ****, Mark ****, Craig **** and Toni **** on 3 January 2007. The applicant did not have a domestic relationship with any of those persons but was aware of them, as Mark and Toni were renting his parents' home, subsequently causing serious damage to it during their stay. The applicant attempted to contact them and Toni's relatives in order to resolve the issue and did not act inappropriately in doing so. He has not had contact with them since the AVO was made in 2007.
Since 2007 he has had a number of interim AVOs made that were revoked or withdrawn before expiry. There had been some events in relation to his previous partner, Kylie Smith, in which he was the protected person in an interim AVO made against her when she punched him in the face.
A number of incidents arose from a single domestic relationship and, effectively, one complainant, Laura, as she was named in all AVOs. The applicant submitted that Laura was an alcoholic who would drink to excess and become aggressive and dangerous. That was exhibited in the event leading to police obtaining a final AVO for the applicant's protection on 7 July 2017 against Laura, when she violently damaged his car and then assaulted him by shoving him, squeezing his testicles and tearing his scrotum.
Laura made a number of false allegations against him, leading to interim AVOs, but the applicant resisted them as they were untrue, and each matter was dismissed or withdrawn. The fact that the AVOs arose from a single relationship lent weight to the applicant's assertion that the allegations made by the complainant were all inaccurate. That assessment was further supported by the fact that none of the AVOs were made into final AVOs, noting that the standard of proof for the making of a final AVO is much lower than the criminal standard.
The applicant's prior conduct had not brought him to the attention of police except for the driving with the presence of a drug and the AVOs. He seeks a licence for the sole purpose of engaging in shooting sports, which is markedly different from hunting. "Private interests such as a hobby" are taken into account when determining what is the public interest: Beleski v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 397, [53].
When one looks at the circumstances surrounding the AVOs, the applicant's character, prior conduct and attitudes in conjunction with the overriding focus on public safety, it is not contrary to the public interest for him to be issued with a firearms licence.
In oral submissions at the adjourned hearing Mr Bellingham on behalf of the applicant pointed out in relation to his traffic record that he had been issued with an unrestricted license in 1988, which he still holds, and has held for 35 years. His record is unremarkable. His licence was briefly suspended for non-payment of a fine, but the suspension was lifted. The 2016 charge for driving with marijuana in the system was discharged without conviction under s 10. There had been nothing of a similar nature either before or since. Community standards in relation to marijuana had changed in the intervening seven years.
O'Brien v Commissioner of Police [2022] NSWCATAD 2, [59], which had been cited by the respondent to show that a bad driving record could be relied on in firearms licence matters had involved a long, sustained history of traffic violations, which did not exist in the applicant's case. Here, his driving record would not carry the same weight. He is a tradesman who drives a great deal, and though some of his answers were flippant, they were honest. His 2022 infringement for an insecure load related to a shovel in the back of his utility. His speeding charges were not serious, and related to excesses of less than 30 km/h. They involved points and fines only.
As regards the substantive matters in the COPS event reports and the AVOs, the respondent concedes that the applicant has never been convicted of a criminal offence. The matters raised against him related to AVOs and his interactions with police. In his evidence he had been forthright, honest and had accepted all of it. His cross-examination had examined the circumstances of the incidents, and his explanations placed the AVOs in context. As regards the AVO obtained by Stephanie, he had not committed any criminal breach of the AVO. It was difficult to maintain his relationship with his twin sons of the marriage, so he had walked away from that family. The AVO had been made final by consent, had not been litigated and no admissions had been made.
In her evidence Kylie Smith had been honest, and unwavering in her assertion that he had not been intoxicated during any of the incidents with her. He had supported her over a long period, and they now share custody equally. She admitted that there had been an AVO against her, arising out of an incident where both had been at fault. But they are now good friends and he helps her when she needs it.
As regards the AVOs with Laura, Kylie had commented that the applicant had been stressed by his relationship with her. Her IAVO had never been made final and had been imposed on an interim basis automatically because of a criminal charge. Both the charge and the AVO had been dismissed.
The respondent had stressed that there had been many interactions between the applicant and police, but there had been no criminal AVO breaches. While AVOs are civil matters, breaches of them are criminal. He had always complied with the orders, sometimes in hard circumstances over contact with the children. These were important decisions and he had been compelled to wait.
As regards the public interest issue, the public safety risk did not rise to the level of being real or substantial. The fact that he follows court orders is important. He was supported by two witnesses, including Mr Northcote, whose evidence affirmed other aspects of the applicant's evidence.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].
While the respondent's case was argued essentially on the basis of public interest, the respondent also submitted that the applicant is not a fit and proper person to hold a firearms licence. The factual issues and the matters of construction are very similar, however. In Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23], the tribunal noted that the two grounds are virtually identical, as: Higgins JM pointed out:
"The case of Ward involved a decision to revoke a firearms licence under s 24(2) of the Firearms Act 1996. The grounds relied on included that it was not in the public interest for the applicant to be the holder of a licence…… Subsection 11(7) of the Firearms Act 1996 is in similar terms to cl 17 of the Firearms (General) Regulations [now cl 20 of the Firearms Regulation 2017]. Accordingly, as a matter of construction there is no justification for distinguishing between these provisions and the manner in which the discretion is to be exercised".
The incident described in report E8754611, 4 March 2000 (id., 34), occurred at handover time when the applicant was said to be in an aggressive mood before any words were spoken. He began verbally abusing her and throwing the clothes that were packed for the children around the veranda of the premises.
They argued in the doorway, whereupon the applicant grabbed her by the right breast with his right hand and stood over her in a threatening manner. Their faces were only a few centimetres apart. Stephanie slapped him in the face and then went inside the house, and he followed uninvited, saying several times that he did not care about the AVO and that she could stick the AVO. He had also made threats to her, saying that he knew she had no-one with her to protect her. Subsequently he was charged with breach of the AVO conditions.
The applicant's comment in cross-examination was that it was one of the many times in which Stephanie had failed in the Family Court. Asked whether he had told police he thought he could attend the house (id. 34), he replied that it was a long time ago and there had been so many allegations. He did not recall grabbing her breast, then said he had not. He did not recall the specifics but he did not grab her in that way. He said he had declined supervised access out of principle.
In event E13264656 (22 December 2001, id., 45) his neighbour at Willoughby complained to police about loud noise coming from his house. The applicant then attended the backyard of the complainant's house and said to him "If you call the police again I will hurt anyone in the household. I will split your melon, I am a kickboxer". He was given an official noise abatement direction. In evidence he said he vaguely recalled police coming to his house, but the alleged threat to his neighbour had been "made up".
At handover time on 13 April 2002 (id., 51) there was a dispute between the parties about his telling the children to walk down the street. He allegedly crossed the street and seized the children, saying to Stephanie "You're not taking the f**ing boys off me, you f*ing idiot. I'll see you in court", then yelled from his vehicle before driving off, "I'll see you in court. You're a slut and an idiot". The applicant said he did not recall saying those things, they were "Lies most likely". He was not aware whether there had been any police action (there had not).
A violent confrontation with Stephanie's brother, Craig B****, arose on 28 January 2003 when the applicant drove to Stephanie's house to visit the children. An argument ensued with Craig after the applicant made some insulting remarks, and the applicant picked up his mobile telephone and said to Craig "I will get someone over here to sort you out and you will be f***ed". Craig had then told him not to come onto the property, but he ran towards him, seizing him by both arms and head-butting him three times. Craig could not break free and then bit the applicant on the right side of his chest. While the two struggled on the ground, a woman walking past said, "Do you want me to call the police?", to which the victim said yes.
As a result of being assaulted, Craig had grazing to both knees and elbows, and swelling to his forehead and right eye where he was head-butted. The applicant's neck was also raw. Statements from Craig and the applicant corroborated that the latter had instigated the incident by stepping out of his car and head-butting the victim for no reason. Because of a lack of supporting evidence, police had decided not to proceed with charges, to which the applicant commented "I have been sodomised by Miranda Police for years". He used offensive language and became irrational after police tried to explain to him the reasons for their actions (E16668018, 28 January 2003, id., 59 - 61).
The applicant said that he was fighting for his life at the time but Craig had his car keys. He had tried to telephone the police, trying to reach for his telephone, The event report said that it had been Craig who had asked the passerby to call the police, but the applicant said he did not recall. He said there had been later incidents
There had been later incidents in which he had called police in connexion with Craig, because, he said, Stephanie had set up an ambush, with Craig hiding in the bushes. The police were not interested in his story. He did not deny abusing the police (id., 61), as he said he had little luck with them because he was "an ethnic" and the police were racist. He might have used offensive language. He did not recall continually calling the police about the matter, but he had been peeved because somebody had tried to kill him with a mattock handle. He had to protect himself and would have been vulnerable if he had stayed in the car.
After a further altercation at handover on 15 February 2003 leading to Stephanie denying him access, police spoke to the children, who were 8 years old at the time. Both said they wished to stay with their mother. Stephanie stated that she had no fears for her safety or that of her children (E16582633, id., 67).
Event E67882295 (id,. 71-77) describes an episode on 3 May 2004 at a time when the applicant had previously had AVOs against him because of his intimidating and threatening behaviour. He had also assaulted Stephanie in the past by grabbing her and spitting at her. Those AVOs had expired. On the day in question he telephoned Stephanie at work and said "I'm just letting you know, I'm going to get the boys". As he had made those threats before, she telephoned the public school and warned the principal, who arranged for her to take the children out of school for the day.
On 15 May he approached her at a soccer match for the children and stood half a metre away from her, saying, "I'm going to get the boys after the game and put them in the car. I'm going to be here every Saturday". He had a camera and was taking pictures of the children and Stephanie. Some other parents involved in the game intervened and the applicant became argumentative and began taking photographs of the other parents. Later Stephanie and the children were accompanied to the car by some of the other parents.
During the car trip home, the children told her that they were scared of the applicant and could not play the game properly because they were afraid of going near him in case he grabbed them and took them away. Stephanie told police that she had fears for the safety of herself and the children and felt intimidated and threatened by his erratic behaviour. An AVO was applied for.
The applicant said he had no recollection of the 3 May exchange or of Stephanie's taking the children out of school because of his comments. He said "No money, no children, was her beef". As regards the soccer match, he did not know that he needed her permission to attend the game and it was "not likely" that he had approached her in the manner described. He did not own a camera and the other parents had not intervened.
Reminded that in his affidavit he had said he tried to talk to her, he replied that it was possible at the end, he had only gone to the games a couple of times. He did not recall whether he had waited by his car, although he had said so in his affidavit. It was 2004 and he did not recall every word. He had "Not necessarily" waited near his car and was not sure if there had been an AVO issued as a result. When asked about the provision in the AVO that barred him from approaching the school, he said he had never been there (id., 78, event E 20884979).
Event E20592237 (31 May 2004, id., 81 - 82) concerned a dispute with his sister Lucy, who owned a business with her other brother, Joe. The applicant had been living at the business premises. In early January 2004, Lucy alleged that the applicant had said to their father, "I'm going to chop her [Lucy's] head off, put it in a plastic bag and send it to Dural". On 28 May 2004, the applicant had called Joe's partner and said, "If I see Lucy, I'll beat her with a pipe". Lucy held fears for her safety and that of the shop and was currently trying to have the applicant removed from the property. An AVO was applied for and issued on 31 May 2004.
The applicant said in his evidence that he did not recall any of it and that Lucy made false allegations. His brother Joe would support his version of events. He had never had any relationship with Joe's partner.
On 7 January 2005 the applicant and a friend had called at Lucy's business to collect a washing machine that belonged to the applicant. It was the friend who made the call. Lucy said she had no objection to the friend collecting the machine, but when she saw the applicant in her backyard she said he was not supposed to be there as he had an ADVO stating that he could not "loiter" in the area. She said the applicant then stated, "I can do whatever I want" (event E23038651, 7 January 2005, id., 101).
At the hearing he said he did not "necessarily recall" the incident, and denied that Lucy had told him not to loiter. He did not recall saying "I can do whatever I want". According to the event report (id., 102), he had later telephoned North Sydney police and had spoken to one Const. Killen, asserting that he had not breached his order and claiming that he had not spoken to Lucy and had only attended the location to collect the washing machine. He said that this did not constitute "loitering". In evidence he said he could not recall that call.
He said that the AVO issued on 3 January 2007 (id., 105) for the protection of four men and a woman arose out of two of them being tenants in the family. They had not paid the rent and had damaged the property and graffitied the walls, to the extent that his parents had cried when they saw the condition of the premises. There had been no altercation, but he had been asked to speak to the tenants and had asked them to get out. He could not recall the language he used. He had made no threats, but an AVO had been issued because the female was involved.
Event E837537190, 30 August 2014 (id., 111) recorded an AVO issued for his protection. He had been seeing Laura, who lived across the street. Kylie had been drinking and became upset, punching and kicking him. He said there might have been some discussion, but alcohol was the catalyst. He himself might have had two beers. According to the event report (id., 116), he was attempting to calm Kylie down while she was abusing him but she punched him on the nose, continuing to abuse him and at times kicking in his direction. In one instance he had grabbed her foot and as a result of her level of intoxication she fell on her posterior.
The police had obtained an AVO as they had seen blood on his lip caused by the blow. The report stated that "Police are of the belief that both the victim [the applicant] and the POI [Kylie] were assaulted, but evidence was only consistent with the victim's injuries" (id., 118) He did not want to let it go further, but he did not agree that Kylie had been assaulted.
Asked about report E58171761, 21 May 2015 (id., 125) which alleged that he had taken Laura's car keys in the course of an argument over their breakup, he said there had been "lots of incidents with Laura because she drinks too much and drives". He had taken her keys for her protection. He was "not sure" if he had deliberately hidden the keys. On 24 December 2015 in the course of arguing with Laura over her puppy's having bitten his dog, causing infection, he had taken her telephone and concealed it at her house. He later told police where it was (E59921503, id., 131). He denied that there had been several events in which he had taken keys or telephones from women.
On 26 June 2016, Kylie had called police after an argument with the applicant over the children's homework, saying that she had left the address with her children because she was scared and was organizing to go to stay at a friend's address. She waited for police outside the house as she wished to have police presence when she returned to the house to collect some belongings for her and the children to stay elsewhere for the night. (E62024762, id., 132, 142).
The applicant said she had no reason to be scared. He said he was stuck in the middle as Kylie and Laura, who lived across the street, would fight. It was a bizarre and awkward situation, though he had created it, but it was not an offence. Asked whether his relationship with Laura had been violent at times, he said there was a great deal of drinking involved over the five years, up and down. He was not the one doing the drinking.
It was the applicant who was named as the victim in event E65076869, on 26 April 2017 (id., 151 - 152) when Laura in a state of intoxication went outside and began kicking his van, which was parked about 3 m from her vehicle, whereupon he called police. Laura then resumed kicking the van and the applicant, using his right forearm, struck her on the left side of her face with enough force to make her fall to the ground, where she remained for about a minute, feeling dizzy and trying to get up. He then took her to the ground again, but Laura could not remember the details of how he did it as she was still dizzy. She told police that the applicant assaulted her on a regular basis and her usual defence was to grab whatever object was closest and throw it towards him, to get him off her.
In the course of the struggle she reached up with her right hand and pulled down his pants. "I saw ………I grabbed them with my left hand and squeezed really hard, both testicles". The applicant pulled away and screamed out in pain from the assault, which tore his scrotum and caused profuse bleeding. Laura told police under caution that she just snapped, because she had enough of being assaulted. The applicant told police he did not want any further investigation, but because of the severity of his injuries and Laura's submissions, she was charged and a PAVO was applied for. The report concludes "Due to the Accused also being assaulted, the Victim may also be charged with common assault". In evidence he did not deny striking Laura and knocking her down, but said that she was attacking him, and he did not get into rages. In the event, no charges were laid because he would not give a statement.
On 8 June 2018, after dinner at a restaurant, the couple went home. Laura then told the applicant that she only wanted to be friends, and not have a sexual relationship. Subsequently the applicant walked back inside the house and observed Laura lying down operating her iPhone and mobile telephone. He walked towards her and seized her mobile phone and threw it on the ground, causing the screen to shatter. He then kicked the telephone in the opposite direction across the room.
A verbal argument started and the applicant got on top of Laura and held her down, using physical force with his arms on her shoulders, preventing her from getting up. He continued to yell at her before getting up and leaving the premises. When later arrested he admitted to police that Laura's account of the events was correct, but denied allegations of assault and damaging her telephone. He said that during the argument, she had thrown the mobile telephone, causing it to be damaged. No charges were laid as the parties' accounts were conflicting and there was no other evidence, but an AVO was applied for.
At the hearing he said he remembered the incident well. They had gone to the Mexicano for dinner, and had some drinks before going home. After Laura had thrown the telephone at him, he had left the premises as he knew he had to get out. He denied, however, Laura's allegation of harassing telephone calls on 3 August 2018, saying he did not call her and she made things up (id., 181 - 182). In exhibit R1 there are also COPS reports of several incidents over a period of two or three months in which Laura's new de facto partner, Michael *****, was aggressive, sometimes physically, and the applicant was the victim. They add little to the evidence in this matter and need not be outlined.
In relation to the bite marks on the applicant, he told police that as soon as Michael had approached him, he had grabbed the applicant and bitten his cheek. He agreed that the second bite would have been inflicted while both men were on the ground. He was inconsistent when answering why he had not left if he was so frightened, saying "I didn't want to let him up". He had chances to leave, especially once he was in a position where he was on top of Michael.
Despite fearing that he was "fighting for [his] life", he made comments such as "He's only reported this because he didn't get the better of me" and other remarks that police took to be a reference to his being able to handle himself. The charges against him were dismissed after hearing on 2 April 2019.
At the hearing he said that when he saw them in the vehicle he guessed that they were drunk, as there were beer cans on the dashboard. The gate to the property had been open. As to why he would be concerned with the situation, he said it was the same as for Kylie because there was still communicating. He had not known they were asleep and thought it was the only way he would be able to talk to her. But he was not sure why he needed to speak to her and had not been invited onto the property.
He denied opening the car door or seizing Laura's arm. He said a few words had been exchanged but no abuse, he had not punched Michael at all or slammed his head on the ground. He said Michael had bitten him while he was standing up. As to why he did not leave the scene, he said that before he knew it, he had Michael biting his face. Michael thought he could get the better of him.
To get the program started, they needed a teacher and instruments. When he mentioned the idea to Marco, he graciously offered to pay for the teacher and donate all the instruments, which the children now enjoy daily. He paid for lessons for several years and gave them drum kits, guitars and keyboards. As a result of his generosity and help, they had been able to get the program up and running. They are honoured to have him as a patron for the program and every child knows who is and thanks him every year at their presentation day. He is also an amazing and wonderful father.
The applicant's position was that the allegations against him were fabrications. All the IAVOs had been false and "a misuse of the process". Even his neighbour in Willoughby had made up his account of the applicant's threats, he maintained. The police made up their minds in advance on domestic violence calls and the man was presumed guilty. The police just "handed out" IAVOs. Not one of the events reported was true, "pretty much".
Stephanie, he said, had made everything up in order to strengthen her position in Family Court proceedings and that he had "pretty much" done nothing wrong. Yet on one occasion, Stephanie explicitly told police that she was not in fear for her safety as a result of an altercation with him. Her evidence therefore cannot be sweepingly dismissed as concocted for an ulterior purpose as the applicant would have it. It does appear, however, that Stephanie herself could be violent and abusive, as Joe Vaccarella deposed. But it is unlikely to be sheer coincidence that the applicant had been involved in domestic violence-related incidents with so many different individuals over two decades.
The applicant's own evidence was less than persuasive. On at least 27 occasions in cross-examination he said he could not recall a material incident, even though many of the events he was asked about were striking and a person would be likely to remember them. As Ms Chenhall pointed out, his memory seemed to be particularly poor in relation to matters adverse to his position.
He also changed his stance in a number of instances. In relation to the allegation that he had grabbed Stephanie's right breast, he at first said he could not recall it, but immediately changed his response, saying that he could not recall the specifics of the incident but he did not grab her in that way. He contradicted his own affidavit in relation to approaching Stephanie at the soccer match.
He also gave many ambiguous, non-responsive or speculative answers. He said Stephanie's evidence about his abuse was "lies, most likely" and "probably none of it was true". It was "not likely" that he had approached her at the soccer match, and he had "not necessarily" waited for the boys near the car. He said Stephanie had "pretty much" made up of all the incidents between 1994 and 2004. He could "not necessarily" recall the incident with Lucy over the washing machine in January 2005 While his grisly threats about what he would do to Lucy were no doubt metaphorical, they did contain an implicit threat of violence. To the allegation that he had cuffed Laura several times before attempting to pull her from the vehicle by her hair, his answer was that "I don't really hit people".
In several instances the applicant himself was the victim of an assault and had AVOs issued in which he was named as the person in need of protection. It is also true that complainants in domestic violence matters do not invariably stick to the truth. Yet in the reports of the nearly 50 episodes involving police intervention in which he was involved, there is enough credible evidence that he used or threatened violence against four women and several men. It shows him as having a choleric, combative side and a seeming inability to avoid becoming involved in violent or potentially violent clashes. He displays no apparent remorse over, or any apparent real insight into, any aspect of his record of domestic incidents: see Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [66] - [67]. I specifically find that the incidents listed in paragraph 160 above have been established on the balance of probabilities.
Even when there are no convictions, a history of such incidents can be decisive on the issue of fitness and propriety or the public interest: Bilanenko, [63] - [68]; Hariri v Commissioner of Police [2022] NSWCATAD 5, [60]. His record in that regard is thus a decisive public interest consideration against his application.
His driving history is unimpressive, recording 22 violations and several suspensions and warning letters, and was convicted of driving under the influence of drugs as recently as 2016. But he has no PCA, manner dangerous or similar high-level charges. He has expressed remorse over aspects of his record and submits that his record has improved in recent years, but he does seem to have been rather slow to learn from his mistakes While his record does not in my view rise to the level of having decisive weight in the public interest balancing process, it does nothing to strengthen his position
The applicant is a man aged 58 with no criminal convictions, no drug or alcohol addiction, no conviction for breach of an AVO and no history of mental health problems. He operates his own successful business in the construction industry and gives employment to a number of workers. He is active within the community, volunteering for two years in the Rural Fire Service. He has actively and generously helped the program for teaching music to needy children at Lalor Park Public School and is admired with gratitude by those in charge.
The applicant submitted that Beleski v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 297, [53] was authority for the proposition that private interests such as a hobby are taken into account when determining what is in the public interest in the firearms licensing context. While the relevant passage may be read as containing that implication, there is no doubt that the public interest in safety prevails over any private interest in shooting (with a possible qualification in the case of primary producers).
Despite having no criminal convictions and being in a number of respects a productive and civic-minded member of the community, however, his record of involvement in so many violent and threatening domestic incidents is a major concern in relation to an applicant who is seeking a firearms licence. In this type of merits review it is not the fact of conviction, charge or acquittal that carries the most weight, but the nature of the applicant's conduct as revealed in the evidence: Bazouni v. Commissioner of Police, New South Wales Police Force [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 70, [30]. In light of all the evidence in this matter, it cannot be said in this case that there would be no real or appreciable risk to public safety, as that concept is explained in Webb, if the applicant were to have access to firearms.
I therefore conclude that it would not at present be in the public interest for a licence to be issued to the applicant within the meaning of s 11(7) and I so find. The discretion in s 11(7) should be exercised in favour of licence refusal. As regards the issue of fitness and propriety, s 11(3)(a) prescribes that a licence must not be issued unless the Commissioner (or on review the tribunal) 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 the peace. Consequently, a positive finding of fitness and propriety is required: EHB v Commissioner of Police [2021] NSWCATAP 63, [45]. For the reasons given above in relation to the public interest, the evidence does not support such a positive finding. I therefore also find that the applicant is not at present a fit and proper person to be issued with a licence. The decision under review must be affirmed.