Young v Commissioner of Police, NSW Police Force

Young v Commissioner of Police, NSW Police Force - [2024] NSWCATAD 253 - NSWCATAD 2023 case summary — Zoe

[4]

Internal review

Mr Young exercised his right to internal review. On 17 October 2022 the senior adjudicator affirmed the decision to refuse the licence application. The senior adjudicator said that Mr Young had previously had his firearms licence revoked on two occasions due to "domestic incidents". The officer noted that although Mr Young had no criminal convictions, he had been charged in respect of "several domestic violence related offences" and was issued with a final AVO, which was later revoked.
The officer considered that there was a potential risk to public safety if Mr Young was to be granted a firearms licence. According to the senior adjudicator: …there is a potential risk for firearms to be in possession of someone who is involved in arguments that constantly require Police intervention. That risk is heightened if Police have recorded concerns regarding the safety of [Mr Young's] ex-partner, and if [Mr Young's] mental health has also come under question."
The senior adjudicator did not base the decision on mental health grounds as Mr Young had provided a report of a "medical professional" stating he was suitable to hold a firearms licence despite being diagnosed with PTSD.
The senior adjudicator considered that concerns about Mr Young's involvement in "domestic disputes" had not been resolved. The officer stated: In my view, a lack of formal action against participants of domestic disputes, or the fact that court orders have been quashed, does not diminish the fact that serious allegations have been made against [Mr Young] on more than one occasion, over a number of years.
The senior adjudicator also said: …anyone trusted with a firearm must be a person who does not require Police engagement to de-escalate domestic altercations. I am not confident that the issue of a licence to [Mr Young] would withstand public scrutiny given [Mr Young's] history of domestic disputes, where [he is] reported to be the aggressor. And: …firearms licence holders are expected to act in a way that is conductive to public safety including in their homes.
The senior adjudicator did not consider that any such concerns had been allayed by the fact that Mr Young was no longer in a relationship with his ex-partner and they no longer reside together.

[10]

Report made by Ms Millar to Police on 29 June 2004

Ms Millar made a police report about Mr Young on 29 June 2004. She alleged that on 28 June 2004 she tried to see some text messages on Mr Young's phone as she believed he was having a relationship with another woman. She said that during a struggle over Mr Young's phone, Mr Young kicked one leg towards Ms Millar's stomach twice and on each occasion she moved out of the way. She was pregnant at the time. Ms Millar alleged that Mr Young then picked up some scissors and went into the bedroom. Ms Millar said she thought Mr Young would cut up her clothes as he had done that once before. Ms Millar alleged she was on the bed with Mr Young's phone under her and he tried to lift her off the phone by the shoulders and the wrists. She alleged that Mr Young then pulled her by her hair bun and then thrust her head into the bed and put substantial weight on her head. Ms Millar said she struggled for air.
Ms Millar also alleged that Mr Young said to her "You're a slut, your [sic] nothing but a whore". She said Mr Young made her apologise to his sister for the incident.
Ms Millar alleged that the following morning Ms Millar declined Mr Young's request for sex and he said to her that the reason she did that was she going to "go out and fuck somebody else today". She alleged that Mr Young proceeded to call her 80 times during the day. She alleged that Mr Young asked her leave her phone on as he did not believe she was at work.
Ms Millar told Police that Mr Young makes these requests "on numerous occasions" and "wants to know where she is and with whom at almost every minute of the day". Police record that Mr Young would ring Ms Millar and "demand to know who she is with or if she has spoken to any men throughout the day".
Police formed the view that Ms Millar had fears for her safety and they obtained a Telephone Interim Apprehended Violence Order (AVO) on 29 June 2004. Mr Young was arrested, taken into custody and submitted to an electronically recorded police interview where he made no admissions. Police also seized Mr Young's firearms and record that they found some centre fire and rim fire ammunition in an unlockable filing cabinet in Mr Young's garage.

[22]

Denial sent abusive text messages and required Ms Millar to record herself

Mr Young explained that he thought text messages were fabricated by Ms Millar. He said that Ms Millar had control over all the phones. He said that his phone was linked to Ms Millar's tablet and that he had seen her send messages which appeared as if they were from Mr Young's phone. Ms Millar sent them from her tablet. When asked, Mr Young said he could not recall in which year it was that he had soon her do that.
Mr Young was taken to transcripts Ms Millar said she prepared from text messages she said Police provided to her that were downloaded for the purposes of the criminal proceedings. These transcripts were attached to her written statement in these Tribunal proceedings.
According to these transcripts Mr Young texted Ms Millar about having run out of coffee at home on 6 September 2017. Mr Young is alleged to have texted the following about the matter to Ms Millar at work: …this is fucked I have to sit home all Fucking day every day and you can't even make sure there is coffee in the Fucking House"
Ms Millar then alleges she replied that she would bring coffee home to which she said Mr Young replied "Now".
At hearing, Mr Young said that he did not recall sending such a message, but agreed it might be possible he had sent it. He said he did not believe the text message was real and commented that it was "over the top" and did not make sense.
Mr Young was taken to another part of the transcript of text messages Ms Millar is said to have transcribed and a text message on 30 September 2017 which read: Answer your Fucking phone we have no keys to get in.
Mr Young responded and stated that he did not recall sending such a message to Ms Millar and the text message may in fact not be real.
Mr Young was also taken to part of the transcript made by Ms Millar in which he accuses her on 30 August 2017 of being "with some bloke" when she did not answer her phone at work when he called. The transcript also records him on 10 October 2017 as again questioning Ms Millar about why she did not answer his call when she was at work and that she better have the time he called her on "[her] rec" which Ms Millar says meant recorder. Mr Young is said to have indicated he would check the recording later.
Mr Young responded when this excerpt of the transcript was put to him that he did not recall those messages. When asked whether it was possible he did send the messages, he said no. He said that he thought they had been made up by Ms Millar. He thought Ms Millar's motivation for making these messages up was to put the blame on him so she would not get in trouble at work for making the recordings.
Mr Young was taken to part of Ms Millar's statement that she gave to Police on10 February 2021. Ms Millar claims in that statement that Mr Young texted her on 29 April 2015 and that the following message meant that Mr Young told her she would need to take the next three days off as punishment: You have the next 3 off
She alleges that Mr Young gave the following reasons as to why he decided to punish her by requiring her to stay home from work: One day for the rubbish and one day for not calling and one day for talking about shit other than work
Ms Millar's statement later states that when Mr Young said she was "to [sic] busy on your knees to read the message" he was suggesting she was on her knees as she was involved in a sexual act with another person.
Another text message Ms Millar refers to in her statement that she claims Mr Young sent her on 30 April 2015 was "Did you have your recorder on at shop". Mr Young denied expecting Ms Millar to record herself when she was at the shops.
Another message that Ms Millar claims was sent by Mr Young on 1 May 2015 read "…I've gone over all the rec but if one thing is not right will be a day off for each one ok". Ms Millar took that to mean that if the recordings Mr Young required her to make were not to his satisfaction, he would punish her by making her take one day off work for every recording that wasn't right. Mr Young denied this was in fact the case.
Mr Young alleged that Ms Millar had fabricated certain text messages on which the Respondent relies. Mr Young said he could not only not recall sending those messages but disputed that he had ever in fact sent them. He said he thought a lot of the messages had been fabricated by Ms Millar. He said he knew she could do that through her tablet so that it appeared that a message had been sent from another mobile.
Mr Young said that the reason Ms Millar recorded herself at work was because she said she was having problems at work and complaints were made about her and she thought her employer would try to fire her. He said Ms Millar had been making these recordings for years. He said that he did not force Ms Millar to make these recordings, but rather she was saying this in order to avoid trouble for making the recordings herself.
Mr Young denied getting Ms Millar to audio record herself at work on her phone. He denied that he asked her to do that because he thought she might be unfaithful to him. He denied asking Ms Millar to record herself at doctor's appointments or at the shops. He denied asking Ms Millar to make these audio recordings so that he could listen to them.

[25]

Denial of controlling finances

The aide memoire purportedly transcribing parts of a telephone conversation between Ms Millar and Mr Young on 5 July 2019 records the following exchange: Jodie: …I am not happy for you to keep all of our money in your own account that I can't access, so what are you going to do about it? Jade: Nothing.
Mr Young denied that he financially controlled Ms Millar. He also denied that he told her what to spend her money on or restricted her access to money.
Mr Young said that he received lump sum payments and that Ms Millar's income went into their joint account. He said both of their incomes were used to meet their expenses.
Mr Young conceded he was pretty annoyed and angry and he probably spoke to Ms Millar in a way he shouldn't have. He said there had been significant tension between himself and Ms Millar all week and they had been arguing. He worried about her driving back that late.
Mr Young said he thought that Ms Millar tried to "bait" him in the recorded conversations given that he did not know he was being recorded.
An excerpt from the aide memoire for the phone calls with Ms Millar on 5 July 2019 reads as follows: Jade: …You fuckin' wait until you're waitin' in the shops for money to be transferred to pay for something next, and I will wait two fuckin' hours before I bother to reply to you to do it. Jodie: Why? I don't understand? Jade: Because you're a little smart arse. Like I predicted, you get up there with your fuckin' mummy and daddy and - what, I send you two messages in two hours with no reply. Jodie: What - why are you…? Jade: That's alright. Just remember that. I just - I want you to remember this, get it - sink it into your brain, because next time you're texting the fuck out of me saying, 'I am standing here like an idiot. I need money. Transfer the money', I'm just gonna go, 'Yeah, I'll do it in two hours.' Jodie: [indiscernible] Why are you acting like this? Jade: Because I'm sick of your bullshit lies. You said you were leaving at four and you didn't. Jodie: Yeah, I left at five instead. Is that a big crime?
The aide memoire also recorded Mr Young telling Ms Millar on 5 July 2019: Jade: Well, how about I let you order the pizza and I tell you I'm gonna pay for it and then I won't? Just change my mind at the last minute and see how you like that. Jodie: Why would you do that when I've got to feed the kids?
Mr Young agreed that he was threatening to withhold money to Ms Millar, but that he had probably said that in "the heat of the moment". He explained that Ms Millar had access to the larger part of the money if she had his phone and that they were happy to let the savings sit in that account.
Mr Young denied stating to Ms Millar on another occasion that if she left him he would report her to Centrelink for fraud.

[33]

Evidence of Ms Millar

Ms Millar provided a statement, prepared for these proceedings and she also gave oral evidence. She agreed she had not had much contact with the three children. She said that she had sought contact with them but had not been "allowed". She said that Mr Young had made excuses about why she could not contact them. She said she had to get a court order to obtain the children's phone numbers.
Mr Cranney, for the Applicant, asked Ms Millar when she was last threatened by Mr Young. She said it was prior to their separation and she thought he had said he would "fly-kick" her to the face.
Ms Millar said that as at the date of her statement in April 2023, she was very fearful of Mr Young. She said he had threatened to kill her. She said she "remained fearful and I always will".
Ms Millar could not recall the date when Mr Young allegedly threatened to feed her to the pigs, but it was during their relationship. The alleged threat by Mr Young that he would put her in a bath of lime she said occurred in the last couple of years of their relationship. She said the alleged threat by Mr Young that he would have a brown snake bite her occurred about five years from their separation. She thought the alleged threat that he would throw her overboard in shark-infested waters probably occurred after they purchased a boat. She said she never went out on the boat alone with Mr Young because she was fearful.
Mr Cranney put to Ms Millar that she had not mentioned those threats before. She said that she could not recall if it was in her DVEC statement in 2019 but the Police did not ask her for a detailed history.
Ms Millar said that she became fearful of Mr Young early in their relationship and her fears were unchanged.
Mr Cranney suggested to Ms Millar that she was in fact not fearful of Mr Young because she had done such things as cross-examine him in family law proceedings in 2021 and attended and sat opposite him at their son's debutant ball and was in a photo standing with Mr Young and smiling. I address these suggestions under 'Consideration' below.
Ms Millar agreed that she probably told Police at the time of her 2004 retraction that Police had manipulated her and embellished her account.
Mr Cranney put to Ms Millar that she knitted Mr Young a pillow. She said that this was because she still loved Mr Young and was pregnant with his child. She said that she also had fears and added that she knew it was "difficult to understand". She said when she returned to the relationship she was torn. She knew he had treated her badly in the past, but she still loved him and did not want to be a single mother. She said Mr Young's behaviour towards her was nice then nasty then nice then nasty. Later in evidence Ms Millar described these changes from nice to nasty as it was like turning a light switch on and off. She said it did not take much to "set him off". She said at times Mr Young would be calm but you could tell he was angry and at other times he would scream and yell.
Mr Cranney suggested to Ms Millar that she could have spoken to people at work about the alleged abuse. She said she was forced to retract the statement in 2004 as she was scared of Mr Young and loved him. She said she did "not know what to do".
Ms Millar explained that she withdrew her complaint to Police about the 28 June 2004 incident when she returned and resumed her relationship with Mr Young. She said Mr Young was "very sorry" and being loving and caring and she started to believe he would change. She said Mr Young was "really nice" to her up to when she retracted her 2004 report. He told her what she needed to put in her retraction but said she did not think Mr Young was present when she made her retraction. She thought she wrote it and left it in a pigeonhole at the police station. She said Mr Young was not happy with her because he had been arrested.
Ms Millar said that Mr Young had told her that no-one would believe her because she had retracted her statement and that he told her that "over and over".
Ms Millar agreed that in 2006 she lodged what she now says is a false statement in the ADT proceedings in which she stated that her complaints to Police in 2004 and 2005 were not true. She said that she submitted this account to the ADT with Mr Young's input.
Ms Millar said that Mr Young coerced her to transfer ownership of her car to him. She said Mr Young threatened her that if she ever left him again he would report the vehicle as stolen.
Mr Cranney asked Ms Millar about her statement to Police on 5 April 2005 that she had made notes in recent weeks and hidden them in Panadol boxes and nappy bags. Police comment that these notes are 'dear diary' entries about having a "bad day" with Mr Young and his "unreasonableness and expectation" towards her and that the notes had no evidentiary probity. Ms Millar responded and said she had to hide the notes so Mr You did not find them. She said that Police had evidence that Mr Young had been controlling towards her and Police did not believe her.
Police recorded that Ms Millar told them on 5 April 2005 that she had no money but when Police took her to the credit union and Ms Millar was able to withdraw $180 in cash and a cheque for $4,998. Ms Millar said she recalled making the larger withdrawal. She said that she did not mean she had no money whatsoever, but that Mr Young was controlling her money and telling her how much she could spend. She said that Mr Young would abuse her if she spent money when he did not want her to. She said that when she returned to Mr Young he asked her to return the money.
Mr Cranney put to Ms Millar that she had been dishonest in her dealings with Police, the courts and the ADT and that she tells the story that she needs at the time.
Ms Millar said that Mr Young required her to record herself at work and in other settings, including at her grandmother's funeral. He would get her to transfer the recordings onto his laptop so he could review them. Mr Cranney put to Ms Millar that she did not raise the issue about Mr Young requiring her to make the recordings until much later when the laptop left her possession. Ms Millar said that she thought the first time she raised the allegation that Mr Young forced her to record herself was at the Local Court in 2019. She also agreed that she did not tell officers of the Director of Public Prosecutions (DPP) that she had been coerced when she spoke to them. She said that the abuse was continuing and that if she left Mr Young said she would not get the baby back.
Ms Millar said that she felt "like a fly in a spider's web" and she felt the more she tried to escape the more she became trapped.
Ms Millar also said that Mr Young had prevented her from giving evidence in the ADT proceedings and forced her to wait in the car with his brother. She agreed that the later explanation she provided to the ADT was false and she said this would have been provided to the Tribunal under Mr Young's instructions, although she did not recall giving the statement to the Tribunal.
Mr Cranney put to Ms Millar that Mr Young had not threatened her in the calls she recorded on 5 July 2019. She said she knew she would "cop it" as she had disobeyed him.
Ms Millar denied fabricating text messages to appear that they had been sent by Mr Young. She said she did not know how to go about doing that. She said Mr Young had sent her abusive messages.
Mr Cranney suggested to Ms Millar that she was not fearful of Mr Young and rather that she was jealous of his relationship with the children. Ms Millar said her fears exist now and will continue throughout the rest of her life.
In re-examination Ms Millar explained that the text messages she transcribed were provided to her by Police after obtaining them from her phone. Police provided them in a 500 page document which she then transcribed them from.

[34]

Comparison of evidence of Ms Agustin and Ms Millar about the 28 June 2004 incident

Ms Agustin is Mr Young's half-sister. She provided an affidavit in these proceedings and also gave oral evidence. She said her recollection was "pretty good" despite the events she described having taken place about 20 years ago.
She was present in the loungeroom with Ms Millar and Mr Young during the incident on 28 June 2004. Her account and Ms Millar's accounts differ in the following respects: 1. Ms Millar could not remember whether she said of the person Mr Young was texting "It's one of your sluts, isn't it" and "It'll be a slut from the army" etc. 2. Ms Millar thought both she and Mr Young were worked up, whereas Ms Agustin did not observe Mr Young to be worked up, only Ms Millar. 3. Ms Millar denied Ms Agustin's account that Ms Millar stood over Mr Young and tried to climb over the top of him to grab his phone. Ms Agustin agreed that she was uncomfortable and found the situation was a bit awkward. 4. Ms Millar believed Mr Young tried to hurt her and kicked towards her pregnant stomach, whereas Ms Agustin said he did not, and he was "not aggressive at all". 5. Ms Millar said that when Mr Young and Ms Millar then moved to the bedroom, Ms Agustin was not in the bedroom when Mr Young held her head into the doona on the bed. Ms Millar said she did not go into the bedroom, as Ms Agustin believed, to "have a sook". 6. Ms Millar agreed that she did not call Police. This was not, as Ms Agustin suggested, because there was no need to do so. It was because she was scared.
Ms Agustin in oral evidence described Ms Millar's conduct as "pure insecurity" and that Ms Millar "[got] the shits" and went off to the bedroom to "have a sook". She said that she tried to "remain neutral" and not judge.
Ms Agustin said Mr Young did not go into the bedroom with Ms Millar. When it was suggested to her that both Mr Young and Ms Millar had both said they then went into the bedroom, Ms Agustin accepted that she might be wrong.
In her written statement, Ms Agustin described Ms Millar as "a jealous person and particularly insecure and jealous of any females".
Ms Agustin rejected the suggestion that at Mr Young's suggestion she contacted Ms Millar to persuade her to return to the relationship. She said she made any decisions herself.

[36]

For the Applicant

Mr Cranney pointed out that Mr Young has been issued with a firearms licence on multiple occasions, including in 2017. All the matters raised by Ms Millar had been thoroughly investigated. He said that the making of further allegations does not increase the probability that they are correct. In fact, there have been inconsistencies in Ms Millar's account.
Mr Cranney submitted that Mr Young's character referees speak highly of him. He only has the 2002 improper storage of ammunition conviction on his criminal record. He lives a quiet life with his children and has a genuine need for firearms to address the wild pigs on his property.
Mr Cranney said Mr Young's mobile phone was never examined by Police and Ms Millar had not provided the Cellebrite examination conducted by Police on her phone. He said that there was no evidence that Mr Young sent the texts that Ms Millar said he did. The Tribunal only has Ms Millar's word for it. There would be no way to know if Ms Millar has inserted fabricated text messages using her tablet.
Mr Cranney argued that Ms Millar only said she was forced to record herself in 2019 once the laptop left her possession and the recordings were on that laptop. He queried why she did not tell Police on 7 July 2019 about the recordings.
Mr Cranney submitted that Mr Young admitted he did bicker and fight with Ms Millar and berate her if she did not answer her phone. He said this did not amount to coercion or control.
Mr Cranney suggested that the recordings made by Ms Millar of phone calls when she was travelling home from Brisbane showed that she was goading for a fight. He submitted that the aide memoire "cherry picked" parts of what was said. Mr Young said he would take down part of the roof when he was accused of doing nothing around the house. The District Court did not find any intimidation.
Mr Cranney said that Mr Young was honest in his evidence and answered questions directly. He denied financially controlling Ms Millar. They had a joint account and a savings account and the primary contribution to the savings account came from Mr Young. He denies requiring Ms Millar to record herself. He made the concession that he killed a rabbit because it was sick. He did not need to make that concession.
Mr Cranney suggested that Ms Millar was motivated by jealousy. Ms Millar retracted her statement to Police and also to the ADT. He said that Ms Millar had lied under oath. Her 'dear diary' entries lack probative value. He suggested that Ms Millar has the skills of a good manipulator. Her evidence was inconsistent and could not be relied upon.
Mr Cranney submitted that Ms Agustin's evidence was open and direct and she had no reason to lie.
Mr Cranney raised doubt as to whether Ms Millar was in fact fearful of Mr Young. She cross-examined him herself in family law proceedings and she attended and sat opposite him at their son's debutante ball.
He suggested that Ms Millar was jealous of Mr Young because of his relationship with the children. They live with him and choose not to see her.

[37]

For the Respondent

The Commissioner submitted that: …the evidence suggests that [Mr Young] consistently engaged in threatening, abusive, coercive and controlling behaviours from 2004 to at least 2019 yet denies that conduct in its entirety, notwithstanding objective and contemporaneous evidence to the contrary.
Mr Watts, said that the text messages and other evidence showed a "troubling picture" of coercive control by Mr Young. According to the Respondent, Mr Young did this by: 1. By being demeaning and verbally abusive and making threats to kill Ms Millar and assault her father 2. Blackmailing Ms Millar by threatening to release intimate videos 3. His cruelty to the rabbit 4. Controlling Ms Millar's access to funds and to family and friends 5. Threatening to dismantle parts of the house and throwing the microwave out of the house 6. Forcing Ms Millar to record herself at work and answer his phone calls at all times and forcing her to take days off work 7. Demanding sex multiple times per day and later every day; and between 2003 and 2005 requiring her to perform sexual acts in public places 8. Coercing Ms Millar to withdraw statements and give false information to Police and the ADT
Mr Watts suggested that the contemporaneous evidence was the best evidence. He emphasised the importance of Mr Millar's diary notes attached to her statement, and said they were made during the course of her relationship with Mr Young. He also drew attention to the text messages, which Mr Young could not recall and meaningfully dispute.
Mr Watts submitted that Ms Millar was the subject of coercive control and that was the reason that some allegations only were made in 2019.
Mr Watts suggested that Ms Young gave self-serving and untruthful answers in order to assist his own case. He said Mr Young's evidence was unresponsive to questions and he engaged in advocacy from the witness box. He suggested that Mr Young was a poor historian and when a difficult proposition was put to him he said he did not recall.
Mr Watts said that Ms Millar had been entirely forthright in her evidence, including that she made recordings at work. This misconduct was dealt with within the department rather than by criminal charges. She came forward voluntarily and exposed herself to criticism to her own detriment. She took responsibility for her prior misdeeds in lying to Police and the ADT. The reason she did these things was she was under the coercive control of Mr Young.
Mr Watts said in contrast, Mr Young tried to smear Ms Millar's credibility and reputation. He had no insight and took no responsibility for his actions towards Ms Millar, other than for the way he spoke to her sometimes.
Mr Watts said that Mr Young carried out threats to use the recordings on the laptop against her. He used the fact she retracted earlier statements to show she should never be believed again.
The Respondent argued that there is a "considerable risk" of Mr Young's behaviour toward Ms Millar re-emerging, despite the fact that the two are no longer in a relationship. The Commissioner argued that Mr Young could engage in these sorts of behaviours towards other people, such as the children he had with Ms Millar and any current of future partner he had.
Mr Watts submitted that if the Tribunal found against Mr Young and that the coercive and controlling behaviour in fact occurred, the Tribunal could not be persuaded that Mr Young would not engage in similar conduct in the future, if Mr Young demonstrated no insight, no responsibility for the behaviour and continued to deny it occurred.
Mr Watts said Mr Young's argument that the text messages Ms Millar said she transcribed are in fact fabricated is merely conjecture. He had not identified which text messages he said were fabricated. He argued that the text messages were consistent with the recorded phone calls and that Mr Young cannot explain those away. He submitted that Mr Young offered no contemporaneous evidence whatsoever.
Mr Watts submitted that the evidence of Ms Agustin was of no real assistance. He said she had an axe to grind and was in the Applicant's camp. He said that Ms Agustin and the character referees had not seen or heard the audio recordings and text messages. He submitted that evidence should be accorded limited weight.

[38]

Assessment of Ms Millar's credibility and account of events

The question of Ms Millar's credibility clearly arises in this case. She retracted her 2004 statement to Police to the effect that she had been assaulted by Mr Young on 28 June 2004. She gave evidence in the Local Court that she did not have fears and the charges were withdrawn.
Ms Millar later told Police on 5 April 2005 that Mr Young had perpetrated sexual assaults on her and threatened to release sexually explicit videos and to report her to her employer. She said he had forced her to transfer the car to him and threatened to assault her father if she challenged him about the car.
Ms Millar later gave false evidence to the ADT about the alleged domestic abuse.
Mr Cranney challenged Ms Millar's evidence about the alleged abuse, pointing out that Ms Millar had knitted Mr Young a pillow, attended a debutante ball and sat opposite him at that event and also cross-examined him directly in family law proceedings. He also queried why she had not raised allegations earlier or spoken to others about the abuse she alleged was happening.
I had the benefit of seeing Mr Young, Ms Millar and Ms Agustin give oral evidence and respond to probing under cross-examination. I found Ms Millar's evidence compelling. She gave detailed evidence about the types of conduct she said Mr Young has subjected her to. I found her description of Mr Young telling her over and over that no-one would believe her and that Mr Young would be nice then nasty then nice again to have the ring of truth. I also found her evidence about being fearful but deciding to return to the relationship convincing.
I am comfortably satisfied that Mr Young subjected Ms Millar to coercive and controlling behaviour. The evidence was overwhelming to that effect. I found Mr Young's suggestion that Ms Millar wanted to blame him for the fact she had made recordings at work because she was facing disciplinary issues at work to have no factual basis. I also found his suggestion that Mr Millar fabricated text messages to be implausible.
I also do not accept that Ms Millar was motivated to lie about the abuse because she is jealous that Mr Young had sole custody of the children and she was jealous of his relationship with the children.
I accept Ms Millar's evidence that she was coerced by Mr Young to retract her statements and give false accounts of what occurred.
I reject the argument that Ms Millar's decision to cross-examine Mr Young in family law proceedings or sitting opposite him at a debutant ball means she was not fearful of him.
In circumstances where I am satisfied that Mr Young subjected Ms Millar to coercion and control, her behaviour should be viewed in this context. The fact she knitted Mr Young a pillow and she returned to the relationship is entirely consistent with the nature of such a relationship. The fact she did not report what was happening to her is also consistent.

[44]

The findings by the District Court Judge

The District Court when determining an all grounds appeal was not satisfied that on 6 July 2019 Mr Young intentionally damaged Ms Millar's phone and intimidated Ms Millar with the intention of causing her to fear physical or mental harm. As the Judge states in the judgment, it is for the prosecution to satisfy the court beyond reasonable doubt that each of the offences have been made out.
I note the Judge's comments about the admissibility of the evidence of aspects of an alleged pattern of behaviour by Mr Young in those criminal proceedings because in the Judge's view the evidence "did not show a regular and intelligible form or sequence discernible in actions or situations." The Judge concluded that it indicated "sporadic actions" and could not amount to a pattern of violence. He held the evidence was not admissible. The Judge also later comments that the prosecutor did not sufficiently particularise when certain comments were alleged to have been made by Mr Young towards Ms Millar, such as "dumb cunt" and "fuck wit", for example.
The task of this Tribunal is a different one. These proceedings are administrative review proceedings and there is no onus of proof on the applicant, although there may be a practical onus on a party to prove facts in issue: refer to Meacham v Commissioner of Police [2020] NSWCATAP 107 at [83]. The Tribunal is applying a different standard of proof and the Tribunal is not bound by the rules of evidence: refer to Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42 at [89]-[91] and [127] and section 38 of the Civil and Administrative Tribunal Act 2013.
It is possible that I may have been provided with a more detailed amount of evidence about the alleged controlling and coercive conduct in this matter than was presented to the Court.
I am entitled to consider the entire course of conduct including the events of 6 July 2019 and to reach my own conclusions on the balance of probabilities and make findings where I am "comfortably satisfied": refer to CGP v Children's Guardian [2017] NSWCATAD 12 at [25]. According to Bronze Wing, I can be guided by a higher standard of proof in respect of allegations that, if proven carry potentially serious consequences, for example reaching a finding that Mr young coerced Ms Millar to commit criminal offences.

[45]

Fit and proper person and risk to public safety

The meaning of fit and proper person is not defined in the Firearms Act 1996. The expression "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": Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at [36].
According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression 'fit and proper person' gives a decision-maker a very wide discretion and it involves three things: "honesty, knowledge and ability" to execute the office or vocation (at [9]).
Whether or not an applicant for a licence is a 'fit and proper' person is to be considered in the statutory context of whether the person can be trusted to possess firearms without danger to public safety or the peace (section 11(3(a) of the Firearms Act 1996). The question of fitness and propriety must be considered in the context of the principles and objects of the Firearms Act 1996, which squarely rests on the need to ensure public safety (refer to section 3(1)(a) of the Firearms Act 1996 and Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]).
Previous cases have addressed the question of how the Tribunal is to assess risk. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 where Deputy President Hennessy said in the context of the expression "fit and proper person" in the Firearms Act 1996: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said: The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of 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.
According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety".
Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase "virtually no risk" "should not be understood as a judicial gloss" on the plain meaning of the statute and the decision-maker should apply the relevant test by "exercising a judgement based on all the evidence": [8] and [10].
I consider Mr Young is not a fit and proper person to be issued a firearms licence and I am not satisfied that he can be trusted to have possession of firearms without danger to public safety or the peace: refer to section 11(3)(a) of the Firearms Act. Mr Young's coercive and controlling behaviour and his denials and lack of responsibility for the behaviour raise real concerns. I am obliged to consider those risks and make the order which will best promote the objects and principles of the Firearms Act including that possession and use of firearms must be conditional on the overriding need to ensure public safety.
I made factual findings about Mr Young's controlling conduct towards Ms Millar. This prior conduct weighs heavily in the assessment of risk and I am concerned that Mr Young did not demonstrate insight or responsibility for his actions. There is no evidence before me that Mr Young's behaviour has been addressed. I am therefore concerned that there is a real and tangible risk that it might be repeated by Mr Young in future intimate partner relationships. The overriding focus of the legislative regime for firearms licencing is public safety. In the circumstances of this case, I am not satisfied that Mr Young is a fit and proper person to be trusted with possession of firearms in circumstances where there is a such a risk.

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Judgment (48 paragraphs)

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Cases Cited (10)