Dodd v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dodd v Commissioner of Police, NSW Police Force [2022] NSWCATAD 9

Hearing dates:

7 June 2021; 26 July 2021

Date of orders:

11 January 2022

Decision date:

11 January 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The decision to revoke the Applicant’s firearms licence is set aside.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Revocation of firearm licence – Whether it is contrary to the public interest for applicant to hold a licence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Firearms Regulation 2017 (NSW)

Cases Cited:

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cusumano v Commissioner of Police [2001] NSWADT 50

EJU v Commissioner of Police [2020] NSWCATAD 270

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Ward v Commissioner of Police [2000] NSWADT 28

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Category:

Principal judgment

Parties:

Joshua Dodd (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Peacockes Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/00014632

Publication restriction:

Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the names of the Applicant's daughter, the Applicant's ex-wife or the Applicant's ex-wife’s new partner is prohibited without the leave of the Tribunal.

Reasons for Decision

Introduction

1. This is an application by Joshua Dodd (“the Applicant”) seeking review of a decision made by the Commissioner of Police, NSW Police Force (“the Respondent”) under the Firearms Act 1996 (NSW) (“the Firearms Act”) to revoke his category AB firearms licence.

2. The Applicant has held a firearms licence since 2013. The licence was due to expire in June 2023. The decision to revoke the licence was made on the basis that it was not in the public interest for him to hold a firearms licence.

3. The Applicant had no adverse licensing history, nor does he have a criminal record. The decision to revoke the licence followed consideration of a number of issues that the Applicant’s ex-partner raised with police. The decision to revoke the licence was affirmed on internal review.

4. In this discussion I will refer to the Applicant’s ex-partner as Ms A. I will refer to the Applicant’s daughter as Ms B. I will refer to Ms A’s partner as Mr C. Subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) applies to the identity of these individuals.

Background

5. The relevant background is set out in the reasons provided by the Respondent in relation to the internal review decision. The information on which the decision was based was primarily provided by Ms A. I note that the Applicant has disputed the version of events provided by Ms A. Nevertheless, the chronology provides a reasonable outline of the issues that arise for consideration.

6. The Respondent’s chronology indicates:

• The Applicant and Ms A were in a relationship for approximately 4 years. The Applicant and Ms A have a daughter, Ms B.

• Police received a report that the Applicant and Ms A had been separated since April 2018 and that they have had ongoing disputes over property.

• Ms A alleged that since she began a relationship with Mr C the Applicant has started to verbally abuse her on a regular basis and calling her names in front of Ms B. She advised police that she was very reluctant to report the incidents as the Applicant is employed by the Department of Corrective Services and he is in close contact with police. She alleged that the Applicant told her that if she reported anything to police that she would not be believed.

• Ms A reported that she had been in her front yard on a number of occasions and sighted the Applicant driving past slowly. She also alleged that she received calls from the Applicant questioning who owned cars parked in her driveway, and phone calls stating that he knew that Mr C was at her address.

• It was alleged that on 10 November 2019 the Applicant had returned Ms B to Ms A’s address and had an argument with Mr C, over comments that Ms B had made. It was reported that during the argument Mr C walked into the Applicant’s personal space and the Applicant put his hand up and told Mr C not to approach him. The Applicant reported this matter to police as a verbal argument.

• It was reported that on 1 December 2019 the Applicant attended Ms A’s address with a letter and requested that she sign over the ownership of a car that she and the Applicant shared. She refused to sign the document and returned inside the house. The Applicant began to knock loudly on a sliding door resulting in Ms A contacting the police. Police attended the address and spoke with the Applicant and Ms A and recommended that the Applicant speak with a solicitor regarding the property disputes. Police reported that the Applicant left the location without issue.

• On 16 December 2019 the Applicant attended Ms A’s workplace and demanded that she sign a form relating to the sale of a vehicle. Ms A stated that the Applicant would not leave until she signed the form.

• The Applicant and Ms A shared custody of Ms B. Police were told that on 22 December 2019 Ms A took Ms B to a McDonald’s for a custody handover. Ms B remained in Ms A’s vehicle while Ms A and the Applicant discussed arrangements for Ms B’s custody on Christmas day. Ms A and the Applicant began to argue. It was reported that during the argument the Applicant stated to Ms A, “I will end you”.

• Ms A stated that she was not aware what the Applicant meant as the Applicant had never previously made threats or acted violently toward her. She then left the location with Ms B. No action was taken against the Applicant by police at that time.

• Ms A alleged that on 24 December 2019 the Applicant stated to her: “I hope you’re proud of yourself you stupid cunt. I hope you die.”

• It was alleged that the Applicant confronted Ms A at her workplace on 5 February 2020 and asked her who was going to be caring for Ms B the following day. When the Applicant was asked to leave, he refused stating that he wouldn’t leave until he received an answer to his query. It was reported that the Applicant were shaking with anger and that Ms A held fears for her safety from him. After being continually asked to ‘leave’ the Applicant turned and walked from the store stating to the Manager: “You have fun with that today because she won’t even let me see my own daughter’’.

• It was alleged that the Applicant again attended Ms A’s workplace on 6 February 2020. It was reported that as Ms A was serving a customer she sighted the Applicant. When she finished tending to the customer, she walked out the back of the workplace to avoid a confrontation with the Applicant. It was alleged the Applicant stated to the manager: “She’s not coming out is she?” and the manager said “No, she’s not.”

• The store manager allegedly said to the Applicant: “she’s already told you that her sister is looking after [Ms B]”. It was reported that the Applicant replied: “No. He’s looking after her isn’t he? His car is at her house”.

• The Applicant left the store but returned again and confronted Ms A. he again asked her who was caring for Ms B. The store manager told the Applicant that he was not to attend the store while Ms A was working and waited for him to leave. It was reported that during this incident the Applicant began to shake in anger and that Ms A was again fearful for her personal safety.

• Allegations of intimidation, abusive behaviour and threats by the Applicant toward Ms A were reported to police on 6 February 2020. Ms A alleged that she was fearful for her personal safety from the Applicant and reported that she and the Applicant involved in proceedings through the Family Law Court relating to parenting orders.

• As a result of Ms A’s allegations the Applicant was made subject to a provisional apprehended violence order (“AVO”) and an interim AVO for the protection of Ms A.

• On the making of the provisional apprehended violence order, the Applicant’s firearms licence was automatically suspended.

• A notice formalising the suspension of the Applicant’s firearms licence was sent on 21 February 2020.

• The interim AVO was dismissed on 2 February 2021.

7. The Applicant disputes most of the allegations that have been made against him.

Issue for determination

8. The issue for determination is whether it is contrary to the public interest for the Applicant to hold a firearms licence.

Applicable legislation

9. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: section 9(1) Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”).

10. Section 75 of the Firearms Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a firearms licence.

11. The role of the Tribunal in reviewing the decision is to decide what is the correct and preferable decision having regard to the material before it, including (a) any relevant factual material and (b) any applicable written or unwritten law: see section 63(1) of the ADR Act. The Tribunal stands in the shoes of the Respondent. The review under section 63 is to be conducted without any presumption as to the correctness of the decision. A review is a review on the merits and is not concerned with whether there was challengeable error in the process or reasoning by the original decision maker.

12. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.

13. The Tribunal may affirm or vary the decision that is the subject of the application, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator.

14. Two of the principles and objects of the Firearms Act are set out in section 3:

3 Principles and objects of Act

(1) The underlying principles of this Act are—

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety—

(i) by imposing strict controls on the possession and use of firearms, and

(ii) by promoting the safe and responsible storage and use of firearms, and

...

(2) The objects of this Act are as follows—

…

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

...

15. Section 11(5)(c) of the Firearms Act provides that a licence must not be issued to a person who:

(c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked)

16. Section 11(7) of the Firearms Act empowers the Commissioner to refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest.

17. Section 24 of the Firearms Act sets out the circumstances in which a licence may be revoked. It relevantly provides:

24 Revocation of licence

…

(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

…

(d) for any other reason prescribed by the regulations.

18. For the purposes of section 24(2)(d) of the Firearms Act, clause 20 of the Firearms Regulation 2017 (NSW) provides:

20 Revocation of licence—licence not in the public interest

The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

The public interest

19. The term “the public interest” has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

“The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.”

20. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

“The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.”

21. In Cusumano v Commissioner of Police [2001] NSWADT 50 at paragraph [23] Deputy President Hennessy stated:

“There is no guidance in the legislation in relation to how these discretions [to revoke firearms licences] should be exercised. In my view, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

22. Section 3 of the Firearms Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. Thus, it is the community’s interests which take precedence over the private interests of an individual. In Ward v Commissioner of Police [2000] NSWADT 28 at paragraphs [27] – [28] Deputy President Hennessy said that in terms of public safety:

“27 …The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

28 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.”

23. Ward v Commissioner of Police dealt with the issue of whether the applicant was a “fit and proper person” to hold a licence, but the comments have been held to apply to the public interest test as well: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, at paragraphs [130] – [134].

24. The question of risk is not, however, to be approached in an absolute or mechanistic way, 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 at paragraphs [64] – [66].

25. In determining this issue 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: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at paragraph [32].

Material before the Tribunal

26. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act. Included in this material are a number of records held in the Respondent’s Computerised Operations Policing System (“COPS”) database showing dealings between police and the Applicant. The Respondent’s material also includes a transcribed statement given by Ms A on 6 February 2020. Ms A’s statement was given in relation to the AVO proceedings. It is not in dispute that the AVO was dismissed at hearing by the Local Court on 2 February 2021. Ms A did not appear to give evidence or to be cross-examined at the hearing in this matter.

27. Mr Zoppo, the Respondent’s solicitor, provided written and oral submissions.

28. The Applicant relies on his own evidence. He provided two affidavits and appeared at the hearing and was cross-examined. The Applicant also relies on an Interrelate Client report provided by Senior Counsellor Ms Jacqueline Wake. Ms Keen, the Applicant’s solicitor, provided written and oral submissions.

The Respondent’s case

Ms A’s statement

29. The Respondent relies on a hand-written notebook statement recorded by Senior Constable Shaye Cain on 6 February 2020. A Typed copy of the notebook statement dated 16 February 2020 is also in evidence. The statement records Ms A’s evidence in relation to the events of December 2019 and February 2020 that are referred to above.

30. The COPS entries include information relating to the allegations referred to above.

Submissions

31. Mr Zoppo provided written and oral submissions. He noted that the Tribunal’s discretion is to be exercised to promote the objects of the firearms legislation. This requires that concerns in relation to public protection, public safety and public confidence in the administration of the licensing system are to be taken into account. The Applicant’s Interest In retaining his firearms licence must be subordinate to the public interest in ensuring public safety.

32. Mr Zoppo notes that domestic violence incidents are treated with heightened caution and with very serious concern under the Firearms Act. He submits that in this case, the relevant issue is whether it would be contrary to the public interest for the Applicant to continue to hold his licence in light of the domestic violence incidents alleged by Ms A.

33. He referred to the background and noted that on two separate occasions Ms A had stated to police that she was scared. She was afraid that the Applicant’s behaviour would escalate and she didn’t know what he would do. For that reason an application was made for an AVO.

34. The Respondent concedes that the Local Court dismissed the AVO after a contested hearing and that the Magistrate took into account the fact that no further incidents occurred between the Applicant and Ms A. However, Mr Zoppo submitted that this should be considered in light of the fact that the AVO was in place to protect Ms A and the Applicant should not be rewarded with a firearms licence for not breaching the interim AVO.

35. Mr Zoppos also noted that the Applicant does not dispute that he:

• attended Ms A’s workplace on 16 December 2019 and on 5 and 6 February 2020;

• became frustrated after Ms A refused to sign an agreement in relation to the ownership of a vehicle and lease;

• can become frustrated and use swear words as part of his daily vocabulary; and

• has driven past Ms A’s home.

36. He noted that the Applicant accepted that he was in a heightened emotional state in and around December 2019 to February 2020 because Ms A had recently commenced a new relationship and he and Ms A were unable to come to an agreement about care arrangements for Ms B.

37. Mr Zoppo points to Ms A’s allegations that the Applicant verbally abused her on a regular basis, started to call her names in front of Ms B and took advantage of his position in the Department of Corrective Services against Ms A. She also alleged that the Applicant made threatening statements of violence. He submits that it is clear that the Applicant’s behaviour displays his propensity for threats of violence and intimidation. He noted that the swear words used by the Applicant are coupled with threats of violence and used in the context of a series of incidents which demonstrate the Applicant’s persistence in tracking Ms A’s whereabouts, who is at her home, physically attending and confronting her in her home and workplace, and displaying a level of uncontrollable anger to the point of 'shaking’ when in front of Ms A.

36. He submits that the Tribunal should find that the threats were made, particularly in the context of evidence that the Applicant verbally abused Ms A on a regular basis and the ‘heightened emotional state’ and ‘frustration’ that the Applicant has admitted to feeling.

37. In the circumstances, Ms A’s statement should be preferred, given that the Applicant has made a number of admissions. He has admitted to becoming ‘frustrated’, that he had already attended Ms A’s home in relation to the same agreement on 1 December 2019, and then attended her workplace on two further occasions in February 2020, where he refused to leave the premises, despite being asked to leave.

38. Mr Zoppo acknowledged that Ms A was not available for cross-examination. He advised that she did not want to be involved in the proceedings. However, he submitted that the Tribunal should not infer that she would not be concerned for her safety if the Applicant is permitted to hold a firearms licence.

39. Mr Zoppo also acknowledged that the Applicant has access to firearms through his work as a Correctional Officer. He is not required to hold a firearms licence in that position, as the Commissioner for Corrective Services holds the licence. Mr Zoppo submitted that this has some relevance but should not be given much weight. He argued that the Applicant’s access to firearms in the workplace is regulated and this is to be contrasted to the situation of a personal licence without supervision.

40. In relation to the Interrelate Client report provided by Ms Wake, Mr Zoppo submitted that the report provides little detail other than the Applicant’s attendance at counselling sessions. However, Mr Zoppo noted that there was little attendance in the period of December 2019 to February 2020. He submits that the report does not provide sufficient information to give comfort in regard to the Applicant’s ability to deal with problems in the future.

41. The Respondent’s position is that the public interest ground under the Firearms Act and the Firearms Regulation goes broader than considering the safety of any specific individual, and it extends to general public safety. The question is whether on the evidence, the Tribunal has the confidence that the Applicant would not pose a risk to public safety if he had access to firearms. It contends that the Tribunal cannot be satisfied that the Applicant would pose ‘virtually no risk’, if not to Ms A, then to any subsequent partners or other individuals. This is so, especially when the Applicant is in a ‘heightened emotional state' or is ‘frustrated.

42. Mr Zoppo submitted that it seems that the circumstances that have led to the incidents referred to above have not been resolved to a permanent level and the risks that arose from the past matters remains. The matters pertaining to Ms B are still before the Family Court and the issue is not permanently resolved in a manner that is acceptable to all. There is still the risk that the circumstances will worsen and the Applicant will not only make threats of violence, but also carry them out.

43. In the circumstances, the Respondent contends that the Tribunal cannot be satisfied that it is in the public interest for the Applicant to hold a licence. Nor can it be satisfied that there is virtually no risk, should the Applicant be given the privilege of a firearms licence that allows him to possess or use firearms. Therefore the decision to revoke the licence should be affirmed.

The Applicant’s case

The Applicant’s evidence

46. The Applicant provided two affidavits. He appeared at the hearing and was cross-examined.

47. His evidence is that his firearms licence was approved for recreational hunting/vermin control and animal welfare. At that time he was assisting on a farm and it was useful to his employer for him to have a firearms licence. He has also had an interest in working in the security industry and has the goal of working for Armaguard in the future.

48. Since 2016 the Applicant has worked as a Correctional Officer with the Department of Corrective Services. He regularly carries firearms if posted at the gate, maintaining security of the centre or on escorts and transfers between centres. Corrective Services encourages employees to shoot recreationally to keep their skills up to date as they rarely use firearms in the workplace.

49. The Applicant’s evidence is that he and Ms A separated in 2018. Between about December 2019 and February 2020 he was in a heightened emotional state because Ms A had recently commenced a new relationship and he and Ms A were unable to come to an agreement about care arrangements for Ms B. He said that Ms A would often change arrangements at the last minute and he would get frustrated because he was missing out on spending time with Ms B.

50. The Applicant gave evidence in relation to various incidents to which the Respondent has referred. In his further affidavit dated 1 June 2021 he stated:

“10 November 2019 incident

I attended [Ms A]’s house with my mother to drop off [Ms B]. Whilst there I raised with [Ms A] a concerning comment that [Ms B] had made where she said that [Mr C] ([Ms A]’s current partner) had a doodle. [Mr C] was in the doorway and could hear the conversation. I could hear him making comments and it looked like he was becoming angry.

I told [Mr C] to come over to me and speak to me about it. [Mr C] came directly up to me and was standing almost ‘nose to nose’ with me. I asked [Mr C] to step away but he refused to do so, so I stepped back. [Mr C] stepped closer and I again stepped back. I put my hand up with the back of my hand facing [Mr C] so that he could not step closer to me again and said “you’re invading my personal space, don’t come near me”.

I then decided to leave because I didn’t want the situation to escalate. I decided to call the Police and make a report of the incident so that it was on record.

Position at Corrective Services

I deny that I verbally abused [Ms A] on a regular basis or called her names in front of [Ms B].

I also deny that I have taken advantage of my position at the Department of Corrective Services against [Ms A].

1 December 2019 incident

A few days prior I had been messaging [Ms A] to try sort out the car registration. On 30 November 2019 I text messaged [Ms A] and asked if I could come over at 10am the next day. I then spoke with her on the phone on the morning of 1 December 2019 and she said I could come over to the house to sort out the car registration. Annexed hereto and marked “JD1” is a copy of that text message.

I went with my father. [Ms A] had friends there with her at time. Her friend … came out and we had a conversation in the front yard about the car. I told [Ms A’s friend] I was there because [Ms A] asked me to come over but [Ms A] would not come out of the house.

Because she would not come out of the house I decided to go through the side gate and knock on the side door. I can’t recall why I decided to do that. I wasn’t trying to get into the house, I just wanted her to speak with me and sort out the issue about the car.

Vehicles in front of [Ms A]’s house

After separation I gave [Ms A] one of my motor vehicles (RAV4) as she did not have one. I signed the registration over to [Ms A] and I kept the car insurance in my name and the finance remained in my name.

Both my father … and I whilst driving to the Orana Mall noticed a different vehicle in [Ms A]’s driveway and my motor vehicle (RAV4) was parked against the gutter on the street.

I called [Ms A] to ask her where the different motor vehicle came from. I was confused why there was a new motor vehicle in the driveway because I had given [Ms A] my motor vehicle and she previously told me she was refused a loan for a motor vehicle and unable to afford one herself.”

51. In his affidavit dated 9 April 2021 the Applicant stated:

“16 December 2019 Incident

After I moved out of the property that [Ms A] and I resided in, we agreed that she would sign the motor vehicle registration into my name and I would remove my name from the lease. I had prepared a written agreement between us that stated this. [Ms A] had previously not been forthcoming in signing anything. I attended her workplace, although I did not enter the premises. I asked her to sign the agreement, however I became frustrated when she refused to do. I walked away for five (5) minutes to calm down and when I returned she agreed to sign the agreement.

22 and 24 December 2019 reports

I deny making those comments to [Ms A].

[Ms A] had changed the plans for [Ms B] for Christmas day and she decided I could no longer see [Ms B] at Christmas because we could not come to an agreement about the changeover time. I became frustrated because I was very upset because it would the first Christmas that I would not spend with [Ms B] since she was born.

Driving past [Ms A]’s house

I drive past [Ms A]’s house when I am driving to Orana Mall. This is the fasted and most convenient route to the Orana Mall from my house. I have always driven this route and there is less traffic than other routes. After I was served with the AVO I no longer drove that route. I did not drive along that street with the intention to see who is at [Ms A]’s house. She never raised with me that it made her feel uncomfortable and I would not have driven that route if I knew that she would be concerned by it.

5 & 6 February 2020 Incidents

I attended [Ms A]’s workplace to ask who was looking after [Ms B]. Based on our status quo arrangement, I would have ordinarily looked after [Ms B] on 6 February 2020. I had previously messaged [Ms A] asking if I would be looking after her, but she would not respond to my messages. I just wanted an answer so I attended her workplace where I knew she’d be. I did not agree with [Ms A]’s partner looking after [Ms B] because she was not overly familiar with him and [Ms A] did not give any reason why I could not look after her.

As I was leaving the store on 6 February 2020 the manager of the store … met me outside. She told me that [Ms A] and I needed to arrange a parenting plan for [Ms B]. [The manager] told me that she understood my frustrate and that she wanted to meet me outside to reassure [Ms A] that I was leaving.

I do admit that sometimes I can become frustrated and use swear words. However, this language is part of my daily vocabulary and I do not intend to intimidate [Ms A] or anyone else, rather I am outwardly expressing my emotions.

52. The Applicant’s evidence is that he and Ms A now have interim parenting orders in place that provide that Ms B spends time with him four nights per fortnight. The Orders also provide for changeover to occur either at Ms B’s day-care or at McDonalds.

53. He stated that those orders were made by Consent in March 2020 and since then he and Ms A have communicated better in relation to matters concerning Ms B. There is now certainty as to the routine and it has provided stability for Ms B, and for Ms A and the Applicant. The Applicant only talks to Ms A about matters concerning Ms B and otherwise he has no contact with her. They message each other no more than once or twice a week. He calls Ms B approximately every second night and sometimes he will talk to Ms A to discuss something about Ms B.

54. He stated that Ms A has not raised any further concerns about him.

Interrelate Client report

55. The Applicant was seeing a Counsellor during late 2019 and early 2020. He stated that he found the counselling beneficial at the time. It gave him different perspectives and measures on how to handle personal situations. He relies on the report provided by Senior Counsellor Ms Jacqueline Wake as evidence of the fact that he attended counselling.

Submissions

56. Ms Keen provided written and oral submissions.

57. Whilst the Applicant held a firearms licence for some eight years, he has never owned a registered firearm. He would borrow a firearm for the purposes of hunting feral animals every few months. He carries a firearm in his employment as a Corrections Officer. He does not have easy access to firearms outside of his employment.

58. It is submitted that the issues raised by the Respondent all relate to stressors arising from a dispute between the Applicant and Ms A. Ms Keen submitted that the relevant stressors in issue in this matter related directly to care arrangements for Ms B and Family Court proceedings. It is submitted that there is some similarity between the present case and that of EJU v Commissioner of Police [2020] NSWCATAD 270 and urged the Tribunal to take a similar approach in this matter.

59. The Applicant admits that he acted inappropriately at the time of the incidents; however, he states that he was acting out of frustration due to a lack of communication and disagreement between himself and Ms A over separation issues and care arrangements for Ms B.

60. There are interim Family Law Orders in place that provide for care arrangements for Ms B. Since these Orders have been in place, there has been stability to Ms B’s routine and no further police reports have been made.

61. The Applicant’s evidence is that the Family Law Orders have provided certainty as to when he is spending time with for Ms B and this has removed the conflict between himself and Ms A, allowing for better and more cooperative communication.

62. Although the Family Court proceedings have not been resolved on a final basis, they have been resolved on an interim basis. The Applicant states that the interim Orders have resulted in better communication between himself and Ms A, it can therefore be concluded that this stressor has been significantly reduced. The making of Family Law Orders has relaxed the conflict between the Applicant and Ms A.

63. Ms Keen submitted that even though the circumstances that have led to the incidents in issue have not been resolved to a permanent level, of itself this is not suggestive that the Applicant poses a risk to the public. The matters pertaining to Ms B, which are at the centre of the circumstances giving rise to the incidents in issue, have been resolved on an interim basis and given there is no evidence about any further incidents between the Applicant and Ms A, the Tribunal should be satisfied that the interim Orders has ameliorated the situation.

64. Ms Keen noted that the Applicant denies making threatening comments to Ms A, however he admits to using profanity. He stated that this is part of his every day vocabulary, and Ms Keen submits that the use of profanity itself cannot be said to be threatening language given its common usage.

65. Ms Keen also noted that the Applicant has not previously breached his obligations under the Firearms Act and Firearms Regulation, has no criminal history and there have been no further incidents since the last police report in February 2020.

66. The Applicant gave evidence that he sought counselling in the past and around the time of the incidences and that this counselling was beneficial. The Applicant also gave evidence that he is managing his mental health in healthy ways. Ms Keen submits that the evidence, particularly in relation to the incident on 10 November 2019 demonstrates that the Applicant is able to act in a reasonable manner. On that occasion he left the situation to avoid it escalating. The incidents are unlikely to occur again.

67. It is submitted that taking into account all the relevant circumstances, with the benefit of time and the fact that there have been no further incidences, the Tribunal can be satisfied that the Applicant poses virtually no risk to either Ms A or the greater public should he hold a firearms licence. Therefore the Commissioner’s decision should be overturned.

Discussion

68. This is a matter in which there was serious cause for concern at the time that the original decision was made. However, in my view it is apparent that the passage of time and the arrangements that have been put in place between the Applicant and Ms A have addressed the underlying issues.

69. The principal issue in this matter is whether or not there is a risk to the safety of the public, including Ms A and the Applicant himself, if the Applicant is permitted to possess firearms.

70. I have set out above various decisions that have considered the concept of the ‘public interest'. The relevant interest is the interest of the public, as distinct from the interest of an individual or individuals. The Tribunal can consider issues going beyond the character of the Applicant. These may include concerns in relation to public protection and public safety.

71. The Respondent has identified factors related to the Applicant’s relationship with Ms A and the care arrangements for Ms B. These are said to be relevant considerations because of their potential to place the Applicant under stress. The Applicant has conceded that between about December 2019 and February 2020 he was in a heightened emotional state because of those these factors. He has also conceded that his behaviour was inappropriate.

72. The Applicant has provided evidence that he was acting out of frustration due to a lack of communication between himself and Ms A and disagreement between them. He has provided information which places each of the incidents in context. Ms A did not attend the hearing and therefore the Applicant’s evidence is unchallenged. I accept the Applicant’s evidence in this regard.

73. Nevertheless, it is understandable that in the circumstances Ms A would have been unsettled by the Applicant’s conduct. I accept that she was afraid that the Applicant’s behaviour would escalate and she didn’t know what he would do. However, I also accept the Applicant’s evidence that if he had been aware that his behaviour had made Ms A feel uncomfortable, he would have altered his behaviour. This is plausible in relation to his practice of driving past her house. However, there must be some doubt in regard to whether his level of frustration was such that he would have been able to control his emotions in dealing with Ms A about matters pertaining to Ms B. He has not disputed that he displayed a level of anger to the point of 'shaking’ when in front of Ms A however it is relevant that his conduct did not escalate further and that in fact he was able to control his behaviour to that extent.

74. There is evidence that suggests that the Applicant’s behaviour would have been intimidating to Ms A. However, there is no suggestion that it ever escalated to the use of violence. In fact Ms A advised police that the Applicant had never previously made threats or acted violently toward her.

75. On the evidence before me I am satisfied that the period in which the Applicant’s behaviour would have been intimidating to Ms A was a narrow one. Almost two years have passed since the last of the recorded incidents and the Applicant has not come to the attention of the police in that time.

76. The Respondent is rightly concerned that the stress arising from family law matters has the potential to give rise to tragic outcomes. As has been observed in numerous decisions of this Tribunal, only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration. It is not possible to predict with absolute certainty where the risk lies in any particular situation.

77. The likelihood of risk to the safety of the public must be assessed by reference to prior conduct. In this matter, the Respondent’s concerns are based on the Applicant’s behaviour between about December 2019 and February 2020 at a time when he was in a heightened emotional state said to have arisen from the circumstances that existed at the time. In spite of the level of frustration that he was experiencing there is no suggestion that he has resorted to the use of violence as a means of resolving stressful situations. In fact, the evidence suggests that he was able to recognise his need for help and sought counselling.

78. I am satisfied that the arrangements that have been put in place since February 2020 have significantly reduced the level of stress and frustration that the Applicant has experienced.

Conclusion and Order

79. In all the circumstances, I am not satisfied that there is more than a minimal risk to the public if the Applicant is allowed to possess firearms. I am not satisfied that it would be contrary to the public interest for him to continue to hold a firearms licence.

80. Accordingly, the Order of the Tribunal is as follows:

1. The decision to revoke the Applicant’s firearms licence is set aside.

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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

Decision last updated: 11 January 2022