Fielden & Fielden v Commissioner of Police, NSW Police Service

[2000] NSWADT 156

CITATION:	Fielden & Fielden -v- Commissioner of Police, NSW Police Service [2000] NSWADT 156
DIVISION:	General Division
PARTIES:	APPLICANT Jean Fielden and Eris Fielden RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	003109; 003110
HEARING DATES:	12/07/2000
SUBMISSIONS CLOSED:	07/12/2000
DATE OF DECISION:	11/08/2000
BEFORE:	Fleming G - Judicial Member
APPLICATION:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	O'Sullivan v. Farrer (1989) 168 CLR 210 Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 Ward v Commissioner of Police, New South Wales Police Service [2000]NSWADT 28
REPRESENTATION:	B Ennis, solicitor J Tunks, solicitor
ORDERS:	1. The Tribunal affirms the decision under review to revoke the licence held by Jean Fielden under the Firearms Act 1996; 2. The Tribunal affirms the decision under review to revoke the licence held by Eris Fielden under the Firearms Act 1996

BACKGROUND TO THE APPLICATION

1 These reasons concern two matters before the Tribunal, namely the applications of Jean Fielden and Eris Fielden (the Applicants’). Eris and Jean Fielden are husband and wife and live in Batemans Bay on the NSW South Coast. Each has applied for review of a decision by the Commission of Police (‘the Commissioner’) to revoke the Category A/B firearms licenses held by them under the Firearms Act 1996 NSW (’the Firearms Act’). This category of licence is issued for the genuine reason of recreational hunting or vermin control.

2 The original decisions to revoke their licenses were made in November 1999. These decisions were reviewed by the Commissioner in March 2000 but were not overturned. Each made an application for review to the Administrative Decisions Tribunal (‘the Tribunal’) on 17 April 2000. Much of the evidence was relevant to both applications and the Tribunal heard the matters together in Batemans Bay on 12 July 2000.

3 The issue for the Tribunal to determine in both applications is whether the Commissioner made the correct and preferable decision in revoking the firearms licenses held by the Applicants.

THE RELEVANT LAW

4 The Firearms Act sets up a comprehensive scheme for the licensing of persons in New South Wales to possess and use firearms. The principles and objects of the Act are set out in Section 3 which provides as follows;

3. Principles and objects of the 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
(c) to facilitate a national approach to the control of firearms
(2) The objects of the Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances ,
(b) to establish an integrated licensing and registration scheme for all firearms,
(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 sales of firearms
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

5 Where a person has been granted a licence the Commissioner may revoke it on one or more of specified grounds set out in the Act. The grounds on which the Commissioner revoked the licence held by Eris Fielden are found in Section 24 of the Firearms Act and they provide as follows;

24 (2) A licence may be revoked:
(a) for any reason for which the licensee would be refused a licence of the same kind or
(b) . . .
(c) . . .
(d) for any other reason prescribed by the Regulations.

6 The Commissioner decided that the reason for which the licence held by Eris Fielden would be refused (24(a)) was that “. . . a licence must not be issued unless the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s way of living or domestic circumstances” (Section 11 (4)(a) of the Firearms Act).

7 The Commissioner also revoked the licence on the basis that it was not in the public interest for Eris Fielden to continue to hold it (Clause 17 of the Firearms Regulation 1997).

8 Jean Fielden’s licence was also revoked on the ground that it was not in the public interest for her to hold a licence. It was revoked on the additional ground that she had contravened a provision of the Firearms Act (Section 24 (2)(b)(ii)).

EVIDENCE

9 The Tribunal held a hearing over one day in Batemans Bay. The Applicants attended and gave oral evidence. Their son Marcus Fielden also gave oral evidence. The Tribunal heard from Constable Pearson for the Commissioner.

10 The Commissioner submitted a number of documents from to the Tribunal in accordance with Section 58 of the Administrative Decisions Tribunal Act 1998. This included the statement of reasons for the decision, the internal review decision and other documents relevant to the decision under review. The Applicant submitted a number of statutory declarations that have also been considered. Both parties were legally represented and made submissions. The evidence and submissions are set out in summary below.

11 The documents filed by the Commissioner appear to have been extracted from a file held by the Firearms Registry. They show that Eris Fielden and Jean Fielden each applied for, and were granted Class AB firearms Licences in 1998.

12 Eris and Jean Fielden have lived and worked in the Batemans Bay area for more than twenty years. They have three children, two sons Marcus (born 1976) Mathew (born 1979), and a daughter Richelle (born 1984). Mr Fielden is the Batemans Bay Depot Manager for Boral Concrete. He has been a member of the Batemans Bay Clay Target Club since 1979 having held many positions in the club including treasurer, shoot marshall and canteen manager. He is involved in regular shoots and told the Tribunal that recreational and competition shooting is an important part of his life. He told the Tribunal that he is very safety conscious around firearms and has instructed his sons in firearm safety.

13 Jean Fielden is a life member of the Batemans Bay Target Club and has held a firearms licence for several years. She told the Tribunal that she obtained a licence when her children were young, about sixteen years ago, because it was necessary for her to transport guns to and from Cowra or to and from sporting venues. She does not herself participate often in recreational shooting but is socially involved with shooting and club members.

14 The Tribunal heard evidence of three police visits to the Fielden home between 1996 and 1999. Documents submitted by the Commissioner include a COPS event summary of the first police attendance to the Fielden home on 13 October 1996. The report, created by Senior Constable Melinda Feld, states that

“ About 8pm, 13 /10/96, the daughter of the victim [Jean Fielden] and POI [Eris Fielden] heard them arguing and, worried for her mother’s safety, she contacted ‘000’. Police attended shortly after where all parties were spoken to. It was agreed that the dispute was of a verbal nature only , and the victim was informed that an AVO would be applied for on her behalf, as she stated she was regularly harassed by the POI. No further action desired by any party”

15 Mr Fielden gave a different account of the incident of 13 October 1996, stating that neither there was no physical violence or danger to his wife’s safety. He said that they were having a vebal argument about the children. He believed that Richelle unnecessarily called the police. Richelle was twelve years old at the time and he agreed that she was probably concerned and frightened about her parents arguing.

16 On 25 March 1999 police again attended the Fielden home in response to a call from Eris Fielden. They spoke to him and his son Mathew. A report of the incident was completed by Constable Pearson, who attended, and it was referred to the Firearms Registry. The report states that when police attended the Fielden home in March 1999, Eris and Mathew Fielden stated that they had been arguing, however neither wished to make a statement to the police. The police report concludes, in part, that “ this is an ongoing dispute between father and son . . .both . . displayed a dislike for each other but refuse to seek any form of counselling or reconciliation.” Police seized twelve firearms and took them to Batemans Bay Police Station. It was found that four of the twelve firearms were not registered in accordance with the requirements of the Firearms Act. On 25 March 1999 Eris Fielden’s firearms licence was suspended for one month.

17 There was, again, conflicting oral evidence before the Tribunal as to what occurred at the Fielden home on 25 March 1999 and afterwards. Eris Fielden told the Tribunal that he had called the police to come and calm down his son Mathew who was becoming violent and smashing things in the house. The Police report of the incident confirms that Eris Fielden was the person reporting the incident. Mr Fielden thought Mathew might have been affected by marijuana or other drugs. He had smashed down a door and an expensive fishing rod and reel. Mr Fielden said that he sought police assistance because of Mathew’s behaviour. Mrs Fielden’s account of the incident on 25 March 1999 was substantially the same as that of her husband. Their son Mathew Fielden left the family home that night and has not resided there since. He and his parents continue to be estranged.

18 Mr Fielden told the Tribunal that during the incident in March 1999 the police only became aware that he had guns on the premises when he expressed concern that Mathew may have been ‘smashing up the guns’. He said that from the moment he mentioned ‘guns’ Constable Pearson treated him like ‘the enemy’ and was hostile to him. She then proceeded to confiscate a number of guns which were found under a bed in the ‘spare room’. He believes she has continued to be hostile towards him and ‘dislikes’ him. Mr Fielden denied that he had any hostility towards the police.

19 Mr Fielden denies that there has ever been any physical violence between himself and his wife. He said that they have a relatively happy marriage although have increasingly argued about their children as they have become teenagers. He believes that he and his wife have had more problems over the last two years because, in part, she has suffered mood swings as a result of menopause.

20 Constable Pearson is a police officer of sixteen years standing and has been based in Batemans Bay for four years. She is an experienced general duty police officer and told the Tribunal that she is experienced in dealing with domestic violence situations. She told the Tribunal that she attended the Fielden house on 25 March 1999. Before entering the house she spoke to Richelle Fielden who was sitting outside. She was visibly upset and crying. Constable Pearson said that Richelle made allegations that there was an ongoing domestic dispute going on in the house between her parents, Eris and Jean Fielden. She spoke to Mathew Fielden and to Eris Fielden at the house and observed a heated verbal exchange between Mathew and his father. Mr Fielden appeared to her to have been drinking alcohol. She did not observe a broken door or any items that were ‘smashed’. She spoke to Mrs Fielden who denied any physical altercation with her husband. There were no signs of physical injury. She inquired about firearms and was shown a locked cabinet in the garage. This was a secure and ‘approved’ cabinet for keeping guns and the ammunition and guns were kept separately.

21 Constable Pearson told the Tribunal that Mrs Fielden then directed her to the guns under the bed, which she confiscated. Constable Pearson told the Tribunal that she was concerned about Richelle Fielden after speaking to her on the night of 25 March 1999 and tried to contact her by phone at a later date to inquire as to whether she wished to make a statement. Richelle did not make a statement and Constable Pearson formed the view that Richelle and Jean Fielden were intimidated by Eris Fielden.

22 Mr Fielden told the Tribunal that his daughter Richelle has been difficult over the past few years and has not accepted his discipline. He believes that she has “been taught at school that if there is any hint of problems within the household that she should immediately ring the police”. Mrs Fielden also told the Tribunal that Richelle had been ‘a difficult child’ and that there had been conflict between her and her father because of this. Both felt that Richelle was maturing and that conflict between her and her parents was decreasing. Mrs Fielden rejected any suggestion that there had been violence in her marriage and stated that there are ‘no unresolved domestic issues within our household”.

23 Following the incident on 25 March 1999 Mrs Fielden was charged with seven criminal offences. Three charges of “Not Keep Firearm Safely” and four charges of “Possess Unregistered Firearm”. She appeared in the Batemans Bay Local Court on 6 September 1999 and pleaded ‘guilty’ to these charges. She had no prior criminal record and the offences were found proven but dismissed under Section 556A of the Crimes Act. Mrs Fielden told the Tribunal that on the night of 25 March 1999 she had told Constable Pearson that the four guns which were found wrapped in a blanket under a bed in her home belonged to her. She confirmed this before the Magistrate who found, in September 1999, that the seven offences relating to unregistered and unsecured firearms were proven against her. However, she told the Tribunal that this was not true.

24 Mrs Fielden told the Tribunal that she had lied to the police and the Local Court. The guns belonged to her son Mathew, who regularly took them from under the bed and cleaned them. Mathew did not have a licence under to have firearms. She had placed the four guns under the bed. He often went shooting while his father was at work and could not get access to the secure cabinet where his father kept his guns. She knew the guns were not registered. She was waiting for Mathew to attend to their registration and to get a licence himself. Mrs Fielden told the Tribunal that while Mathew was ‘angry’ and ‘just knows everything and what he says goes’ she did not think he would use the guns in violence.

25 On 6 April 1999 Mr Fielden applied, through his solicitor, for the suspension of his licence to be withdrawn. Constable Pearson supported this application in a report dated 21 April 1999 and the suspension was lifted on 6 May 1999. Those firearms previously confiscated which were registered and belonged to Mr Fielden were returned.

26 On the night of 21 October 1999 the police were again called to the Fielden home in Batemans Bay. The police report of the attendance, created by Senior Constable Dean Maguire states that

“On the night of 21.10.99 Richelle Fielden contacted 000 and alleged that her father Eris was in the process of assaulting her mother Jean Fielden. Police attended immediately and upon arrival could hear swearing and abuse between mother and daughter. Police entered the foyer of the premises and spoke with Jean Fielden, she alleged that a verbal argument had taken place between herself and her husband a short time earlier. Whilst speaking with Jean Fielden her daughter continually interjected and alleged that an assault had taken place involving her parents. Jean Fielden denied that she had been assaulted. All parties concerned are recorded under another COPS entry involving similar circumstances. It is difficult to determine the true circumstances of the incident however it appears that problems do exist between Mr and Mrs Fielden and the Complainant [Richelle Fielden].

27 Mr and Mrs Fielden denied that there was any violence between them on this night and told the Tribunal that Richelle had again over-reacted and called the police unnecessarily.

28 On 23 October 1999 Constable Pearson sent a report to the Firearms Registry concerning the retention of the firearms licence of Jean Fielden. She referred to the offences proven in the Local Court in September 1999 and to ‘unresolved domestic violence problems’ in the Fielden household. She raised an objection to Mrs Fielden retaining her firearms licence. On 22 November 1999 a decision was made to revoke Mrs Fielden’s licence and she was advised of this in January/February 2000.

29 The decision to revoke Mrs Fielden’s licence were reviewed internally and affirmed. Reasons were given on 21 March 2000. The reasons refer to her conviction for firearms offences and to the view of local police to the effect that there are unresolved domestic disputes in the Fielden household. The reasons also refer to the principles and objects of the Firearms Act and the conclude that it is not in the interests of public safety for Mrs Fielden to hold a licence.

30 On 25 October 1999 Constable Pearson sent a second report to the Firearms Registry, this one concerning the ‘question of fitness upon firearms licence holder Eris Fielden’. She recommended that Eris Fielden’s firearms licence be revoked. This report noted that police had attended the Fielden household on three occasions in relation to ‘domestic disputes’. The report describes Mrs Fielden as the victim in these incidents and states that on at least two occasions Mr Fielden was affected by alcohol when the police attended. It states further that;

“ the POI [Mr Fielden] appears to have a dislike for Police and when attending Batemans Bay Police Station to retrieve his firearms was abusive to all Police and Office personal present. In this regard, it appears the POI may well be intimidating the victim in relation to her non-pursual of action. Police have attempted to retrieve a statement in relation to these facts from daughter Richelle, but she appears unwilling for probably the same reasons.”

31 Mr Fielden’s firearms licence was then revoked in November 1999. He sought reasons for the decision which were supplied on 1 February 2000 and internal review of the decision which was made on 20 March 2000. The internal review decision referred to the events which have been set out in summary form above. The reasons referred to the ‘ongoing domestic situation in the Fielden household and police fears that due to this it was not in the public interest for firearms to be easily available.

32 Mr Fielden tendered photographs of the locked cabinet in which he kept his firearms. He reiterated to the Tribunal his concern for safety around firearms and his long experience in dealing with guns. Mr Fielden told the Tribunal that he had been aware in 1999 that Mathew had four firearms in the house and that they were not in the secure locked cabinet where he, Eris, kept his own guns. He knew that they were ‘illegally stored’ and were unregistered. He did not ask Mathew where he kept the guns. He also knew that Mathew did not have a licence because his licence had ‘run out’. He said that he had repeatedly asked Mathew to get a licence.

33 In addition to evidence about the events set out above the Tribunal heard from Marcus Fielden. He gave evidence to the effect that his father was very safety conscious about guns including their storage and supervision. He submitted a statutory declaration, which stated that he believed his parents argued sometimes but neither were violent, nor did his father have a problem with alcohol. He referred to Richelle and Mathew, his siblings, as stubborn and Mathew as ‘an angry young man’.

34 Mr and Mrs Fielden submitted a number of testimonials as to their good character, their strong marital and family relationships, involvement in local affairs and in the local shooting club, and their general good standing in the community. At the time of the hearing the family situation had changed to the extent that Richelle no longer was at school and was said to be more co-operative with her parents. Mathew no longer lives at home and keeps little contact with his parents.

35 A report of clinical psychologist Peter Erskine, dated 18 June 2000, was tendered. This report did little other than reiterate what Mr and Mrs Fielden had submitted to the Tribunal in oral evidence and by way of statutory declaration. The report concluded, amongst other things, that there was ‘no major psychological reason why Mr and Mrs Fielden should not have their gun licences, and in Mr Fielden’s case, his guns, returned’.

Applicants Submissions

36 Mr and Mrs Fielden’s legal representative made a number of submissions to the Tribunal as to why the decision to revoke their licences should be overturned. These are summarised briefly here. The situation of Eris Fielden was distinguished from that of Jean Fielden. It was submitted that Mr Fielden’s long and safe association with firearms and his good character and standing in the community were compelling factors in favour of his retaining his licence. Mr Fielden's lack of any criminal convictions was also held to support his claims to a licence. The problems in the Fielden household were, it was submitted, largely due to Mathew, and were not related to excessive alcohol consumption by Mr Fielden or to domestic violence between he and his wife. They were exacerbated by Richelle who was ‘difficult’ and prone to calling the police. It was submitted that Constable Pearson was blatantly biased against Mr Fielden in recommending revocation of his licence.

37 It was submitted for Mrs Fielden that she acted out of concern to protect her son Mathew. She also has strong standing and ties in the community. Her conviction in relation to ‘Mathew’s guns’ are her only convictions. It was submitted that both Mr and Mrs Fielden were fit and proper person to hold a firearms licence and that no issue of public safety arose

Commissioners Submissions

38 The legal representative for the Commissioner submitted that the Tribunal was obliged to make its decision by reference to the underlying principles and objects of the Firearms Act, namely the safety of the community in relation to the possession, storage and licensing of firearms. The Act provides for strict control over these issues. It was submitted that the fact that the police were called to the Fielden home on three occasions in relation to domestic disputes was sufficient for Constable Pearson to refer the matter to the Firearms registry. It was not a matter of a personal animosity between Constable Pearson and Mr Fielden. There is general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms.

39 The Commissioner referred the Tribunal to cases concerning the issue of the ‘public interest’. It was submitted that the public interest in strict control of firearms was evident in the Firearms Act and that the public interest outweighed Mr and Mrs Fielden’s private interest in retaining a firearms licence. While the Commissioner acknowledged differences as between the circumstances of Mr and Mrs Fielden it was submitted that both licences should remain revoked.

FINDINGS AND REASONS
Application of Jean Fielden (ADT 003109)

40 The Tribunal deals first with the application of Jean Fielden. The Commissioner has relied on a number of grounds and the Tribunal deals first with the ground that she had contravened a provision of the Firearms Act. It is relevant to a consideration of this ground that it whether or not a person has been convicted of such a contravention is not determinative.

41 The Tribunal did not find Jean Fielden to be a truthful or credible witness. She came to the Tribunal stating that she had lied to the Local Court and been convicted of offences under the Firearms Act, of which she now claims she was not guilty. It is not for the Tribunal to undertake a second forensic inquiry as to whether Mrs Fielden was guilty of the charges of possessing unlicensed firearms and not keeping firearms safely. The wording of Clause 24 (2) (b) (iii) allow the Tribunal to consider contraventions of the Act regardless of the fact of a conviction.

42 The Tribunal is of the view that Mrs Fielden’s behaviour makes a mockery of the objects of the Firearms Act. If her evidence before this Tribunal is to be believed she has not committed offences under the Firearms Act but has committed other offences in relation to her plea of guilty to the Local Court in September 1999. On balance the Tribunal accepts that she lied to the Court to protect her son Mathew. The inevitable conclusion to be drawn from this is that the revocation of her licence on the basis of a contravention of the Act must be set aside. However the ramifications of Mrs Fielden’s lie and her other conduct are wide ranging. They are relevant to the second ground of revocation of her licence, namely that it is not in the ‘public interest’ for her to hold a firearms licence. This second ground is now considered.

43 The phrase ‘in the public interest’ was considered by the High Court in O'Sullivan v. Farrer (1989) 168 CLR 210. In a joint judgement, Mason CJ, Brennan J, Dawson J, and Gaudron, said that

The expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission , per Dixon J. at p 505.

44 The concept of ‘the public interest’ was considered by this Tribunal in two previous decisions, namely Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) and Ward v Commissioner of Police, New South Wales Police Service [2000]NSWADT 28. In Toleafoa the Appeal Panel stated that the public interest is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

45 In Ward, Deputy President Hennessey found that these comments were equally applicable in the context of the Firearms Act 1996. The Tribunal agrees with this view. The Tribunal finds that the ‘public interest’ in relation to the holding of a firearms licence is referable to the objects and principles set out in Section 3 of the Firearms Act.

46 Not only has Mrs Fielden now gained a record of convictions of firearms offences, she has protected her son from a conviction and paved the way for him to obtain a licence himself. This, in the face of her evidence that he is angry, violent to the point of damaging property in her home, and unresponsive to direction from her or her husband. On her evidence he has been the cause of police attendance at her home over the past few years.

47 The Tribunal has taken into account the evidence and submissions made as to Mrs Fielden’s standing in the community and her otherwise unblemished record and good character. However the Tribunal cannot accept the submission, put forward on behalf of Mrs Fielden, that she should retain a firearms licence. The Tribunal is of the view that Mrs Fielden has acted contrary to the principles and objects of the act in relation to the strict control of firearms in the interests of public safety. Her actions left four unregistered firearms within easy access of an admittedly violent person and potentially endangered the well being of other members of her family and the community. It will be seen from the discussion below that the Tribunal has not found that she is solely responsible for this situation but nevertheless she had an ongoing personal responsibility which she failed to discharge.

48 The Tribunal finds that it is not in the public interest for Jean Fielden to hold a firearms licence and that the correct and preferable decision in this case is that the revocation of her licence be affirmed.

Application of Eris Fielden (003110)

49 The Tribunal now turns to the application of Eris Fielden. The Tribunal has considered first the ground of revocation which claimed that, had Mr Fielden been applying for a licence, it would have been refused on the basis that he “may not exercise continuous and responsible control over firearms because of [his] way of living or domestic circumstances” (Section 24 (2) (a)of the Act and Clause 11 (4)of the Regulations).

50 It has been submitted that Eris Fielden’s actions in relation to the unlawful possession and storage of four firearms in his home were ‘benign’ at worst. It was claimed that the primary responsibility for this situation rested with Jean Fielden and Mathew Fielden. The Tribunal rejects this submission. Mr Fielden is a person who has had a long association with firearms. The Tribunal accepts that he is well aware of the need for utmost caution in their care and control. The Tribunal accepts the evidence that in relation to his own guns Mr Fielden was scrupulous as to their storage in a locked and approved cabinet and that he was cautious as to who gained access to them. The Tribunal also accepts that he impressed upon his children the need for safety around firearms.

51 However Mr Fielden’s own evidence was that he knew there were unregistered firearms in his home and that Mathew was unlicensed. He knew that these firearms were not stored in the safety cabinet where he kept his own guns. The Tribunal is of the view that Section 11(4)(a) Act contemplates that a person holding a firearms licence would exercise responsible control over firearms known to be in their own home, even if the licensee is not the owner of the firearms. Ultimately it has been unnecessary to finally determine whether the section extends to firearms not owned by the licensee because the Tribunal has found that the second ground for revocation of Mr Fielden’s licence has been made out. This concerns whether it is ‘in the public interest’ for Mr Fielden to hold a firearms licence. The Tribunal’s understanding of the discretion to be exercised in determining this ground have been set out above.

52 There are certain factual matters which should first be clarified. The Tribunal does not accept Mr Fielden’s submission that Constable Pearson pursued revocation of his licence because of some personal hostility or animosity towards him. Indeed the Tribunal is of the view that it could have been said that Constable Pearson was negligent in her duty had she not referred the matter to the Firearms registry. She was aware of three police attendances to the Fielden home, of the confiscation of four unregistered firearms and of the volatile behaviour of Mathew Fielden who was at that time living with his parents. It was proper and appropriate that she referred this matter on for adjudication.

53 There was significant evidence before the Tribunal as to the three police attendances at the Fielden home in 1996 and 1999. While the Tribunal is not bound by the rules of evidence it must concern itself only with evidence which is relevant and of sufficient weight. Something must be said about the references to Richelle Fielden and to the allegations of domestic violence in the Fielden home. The Tribunal accepts the decision of both parties not to call Richelle Fielden. She is a sixteen year old girl who would clearly be placed in an intolerable position whichever way her evidence went. She was in a ‘no-win’ situation were she to confirm or deny Constable Pearson’s account of her visit to the Fielden home in October 1999. Ultimately the Tribunal has not given the evidence of the words or actions of Richelle Fielden any weight. Nor does the Tribunal make any finding in relation to her character or conduct or accept that she was acting impulsively in ringing the police. This is not necessary. The evidence was contradictory and she was not called.

54 Similarly with the references to ongoing unresolved domestic issues between Mr and Mrs Fielden and the suggestion that Mr Fielden has a problem with his alcohol consumption. The Tribunal was not persuaded on the evidence that either of these matters could, on balance, be found to be true. The Tribunal accepts Mr and Mrs Fielden’s evidence and that of their son Marcus, to the effect that they do not have a physically violent relationship.

55 However the Tribunal finds that a number of undisputed matters remain of concern. It is a fact that the police were called to the Fielden home on three occasions between 1996 and 1999. It is not in dispute that Mathew Fielden had been behaving violently on at least one of these occasions. The lack of action by Mr Fielden in relation to the conduct of Mathew and the fact that four unregistered guns remained in the house has been described above. In the Tribunal’s view this is equally relevant to whether or not it is in the public interest for Mr Fielden to continue to hold a firearms licence. The Tribunal does not accept that Mrs Fielden bears all the responsibility for Mathew’s conduct or for the failure to ensure that his guns were locked and that he obtain a licence. Mr Fielden told the Tribunal that he had a particularly stormy and difficult relationship with Mathew to the point where he himself phoned the police for assistance in dealing with him. The Tribunal is of the view that Mr Fielden’s failure to act in relation to Mathew’s guns suggest a serious disregard for the safety of his family, the police (on at least the occasion they attended the house) and the general public. He was experienced in the need for strict attention to safety where guns were concerned.

56 The Tribunal accepts that Mathew no longer lives in the Fielden family home. However the Tribunal is not satisfied that this removes any concern for firearm safety and the public interest were Mr Fielden to have his licence reinstated. The provisions of the Firearms Act are strict and its principles and objects are clear. The Tribunal is of the view that Mr Fielden made grave errors of judgement in allowing the situation to continue whereby he knew that an angry and violent young man had easy access to unregistered guns in his own home. In the Tribunal’s view this also exhibits a disregard for the principles and objects of firearms regulation in this state. Firearms regulation is strict for obvious reasons including that firearms are often involved in domestic disputes and routinely cause death and disfigurement.

57 The Tribunal has given careful consideration to Mr Fielden’s unblemished criminal record and to his long work history and standing in the local community. The Tribunal has also carefully weighed up the significant social upheaval that this will cause Mr Fielden in terms of his ongoing participation in the Batemans Bay Target Club. However, for the reasons set out above, the Tribunal has ultimately concluded that it is not in the public interest for Eris Fielden to continue to hold a firearms licence.

DECISION
Application of Jean Fielden (ADT -003109)

58 The Tribunal affirms the decision under review to revoke the licence held by Jean Fielden under the Firearms Act NSW 1996

Application of Eris Fielden (ADT-003110)

The Tribunal affirms the decision under review to revoke the licence held by Eris Fielden under the Firearms Act NSW 1996.