Fulton v Commissioner of Police, NSW Police Force

[2015] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Fulton v Commissioner of Police, NSW Police Force [2015] NSWCATAD 150
Hearing dates:	5 February 2015 and 10 March 2015.Final submission received 17 March 2015.
Decision date:	16 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	1. The Commissioner’s decision under review is set aside.  2. If the Applicant applies for a firearms licence after the publication of this decision, the Commissioner shall have regard to this decision
Catchwords:	Firearms licence; revocation; fit and proper person test; public interest test; written permission.
Legislation Cited:	Administrative Decisions Review Act 1997 Administrative Decisions Tribunal Act 1997 Crimes (Domestic and Personal Violence) Act 2007 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police [2013] NSWADTAP 16 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Ward v Commissioner of Police [2000] NSWADT 28 Wilkinson v Commissioner for Police [2002] NSWADT 59
Category:	Principal judgment
Parties:	Jason William Fulton (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: North & Badgery (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	1410476

REASONS FOR DECISION

Background   

1. In January 2013 events occurred in and near Tottenham, New South Wales, which caused the Commissioner of Police (sometimes called the Respondent in this decision) to suspend the category AB firearms licence then held by the Applicant (the Licence) and to seize the Licence and all firearms then in his possession. An apprehended domestic violence order (ADVO) was issued against the Applicant and he was charged with certain offences.

2. In September 2013 the charges, defended by the Applicant, were heard in the Local Court (the Local Court proceedings). All charges were dismissed and the ADVO was revoked.

3. In February 2014 a delegate for the Respondent notified the Applicant that the delegate had made a decision to revoke the Licence. The Applicant requested an internal review of that decision and a second delegate for the Commissioner, having conducted an internal review, agreed with the initial decision, albeit on what were described as ‘varied grounds’. The Applicant then applied to this Tribunal for a review of the internal review decision. Evidence was presented and some submissions heard on 5 February and further submissions were heard on 10 March 2015.

Jurisdiction of the Tribunal

4. Section 75 of the Firearms Act 1996 (the Act) provides that a person may apply to the Tribunal for an administrative review of a decision to revoke a licence issued to the person. In accordance with s. 63 of the Administrative Decisions Review Act 1997 the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the application the Tribunal may affirm, vary or set aside the decision or refer it back to the Commissioner to be further dealt with.

Material before the Tribunal

5. The Applicant relied on:

1. an affidavit made 24 November 2014 by the Applicant. Attached to this affidavit were pages 14, 15, 20 and 21 from the police notebook of Senior Constable Judith Crawford (Snr Cst Crawford) and an extract of the magistrate’s decision in the Local Court proceedings.

2. An affidavit made 24 November 2014 by Tanya Maree Fulton, the Applicant’s wife.

3. Written submissions made 9 December 2014 by the solicitors for the Applicant (AS).

4. Closing submissions read to the resumed hearing by Mrs Hazelton and provided in writing on 17 March 2015.

5. Oral submissions by Mrs Hazelton; and

6. Both the Applicant and Mrs Fulton gave oral evidence and were cross-examined.

6. The Respondent relied on:

1. a bundle of documents filed on 23 December 2014 under s. 58 of the Administrative Decisions Tribunal Act 1997. The bundle, headed BRIEF OF EVIDENCE, included:

1. COPS event reference E163057098 created by Sen Cst Crawford in relation to unlawful discharge of a firearm, intimidation and seizure of firearms.

2. NSW Police facts sheet H50256405 in relation to the Applicant, detailing alleged offences by the Applicant concerning “carry firearm manner likely injure person/property” and “stalk/intimidate intended fear physical etc harm (domestic)” twice (the Alleged Offences).

3. Statement made by Snr Cst Crawford dated 18 January 2013.

4. Statement made by Senior Constable Andrew Pearce (Snr Cst Pearce) dated 13 February 2013.

5. Notice of suspension of the License on the grounds of Provisional Apprehended Violence Order.

6. Notice of revocation of the Licence.

7. The internal review reasons.

2. A bundle of documents filed on 23 December 2014 described as NSW Police Force Indictable Brief of Evidence Covering Sheet number H50256405 in respect of the Alleged Offences. This bundle comprised copies of several documents including:

1. Court attendance notice which contains details of the Alleged Offences occurring between 2:30 pm on 12/01/2013 and 5:40 pm on 13/01/2013 at Tottenham including that the Applicant did intimidate Lauren BELL (Ms Bell) and Luke CROWE (Mr Crowe) with the intention of causing the Ms Bell and Mr Crowe to fear physical or mental harm.

2. Partly redacted pages 14, 15, 20 and 21 from Sen Cst Crawford’s police notebook.

3. Statement by Mr Crowe dated 13 January 2013.

4. Statement by Ms Bell dated 13 January 2013.

5. Provisional ADVO against the Applicant.

3. A document described for the purposes of this hearing as “Audit Report” which is exhibit R3.

4. Written submissions dated 30 January 2015 by the solicitors for the Respondent (RS).

5. Sen Cst Crawford gave oral evidence and was cross-examined.

6. Dr Thompson made oral submissions.

7. References in this decision to paragraph numbers in submissions by the Respondent are to paragraphs of RS unless indicated to the contrary.

The Respondent’s submission

8. The Respondent submitted at [2.5] that the issues before the Tribunal were:

1. Whether the Applicant was or was no longer a fit and proper person who could be trusted to have possession of firearms within the meaning of sections 11(3)(a) and 24(2)(a) and (c) of the Act.

2. Whether the Applicant contravened a condition of the Licence on 12 January 2013 within the meaning of sections 19(2)(a) and 24(2)(b)(iii) of the Act by failing to comply with the safekeeping requirement of s. 39(1)(a) of the Act.

1. Whether the Applicant contravened provisions of the Act without having been convicted of an offence for the contravention in accordance with section 24(2)(b)(ii) of the Act, insofar as he:

2. did not take reasonable precautions with respect to the safekeeping of his firearm at about 6:30 pm on 12 January 2013 in contravention of s. 39(1) of the Act;

3. used his firearm for an unauthorised purpose at about 6:30 pm on 12 January 2013 in contravention of section 7A of the Act;

4. did not, on 12 January 2013, have written permission from the owner or occupier of the "Additional" property to shoot on the land, in contravention of s. 24(2)(b)(ii) of the Act and clause 28(2) of the Firearms Regulation 2006 (the Regulation).

3. Whether it would be contrary to the public interest for the Applicant to have a category AB firearms licence within the meaning of sections 11 (7) and 24(2)(a) of the Act; and

4. Whether it is not in the public interest for the Applicant to continue to hold his Category AB firearms licence in accordance with section 24(2)(d) of the Act and clause 19 of the Regulation.

The law

9. Relevant legislation concerning the licensing, use and safekeeping of firearms is found in the extracts from the Act and Regulation set out immediately below and later in this decision. All references to sections are to sections of the Act and all references to clauses are to clauses of the Regulation unless otherwise stated.

Firearms Act 1996

11   General restrictions on issue of licences

(1)  The Commissioner may issue a licence in respect of an application, or refuse any such application.

…

(3)  A licence must not be issued unless:

(a)  the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

(b)…

(7)  Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest

19   Conditions of licence

(1)  A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

(2)  Without limiting subsection (1), each licence is subject to the following conditions:

(a)  the licensee must comply with the relevant safe keeping and storage requirements under this Act,

… 

(3)  A licence is subject to such other conditions as may be prescribed by the regulations.

10. In addition the law provides that a licence may be revoked for any reason for which the licensee would be refused a licence of the same kind, s. 24(2)(a), or if the licensee contravenes any provision of the Act or Regulation whether or not the licensee has been convicted of an offence for the contravention, s. 24(2)(b)(ii)), or contravenes any provision of the licence, s. 24(2)(b)(iii); or if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. s. 24(2)(c). The Commissioner may also revoke a licence if he is satisfied that it is not in the public interest for the licensee to continue to hold the licence, clause 19.

Issues before the Tribunal

11. The relevant decision for consideration by the Tribunal is decision to revoke the Licence. The issue before the Tribunal is whether the decision was the correct and preferable decision having regard to the principles and objects of the Act. The determination of the issue depends on whether it is (or is not) in the public interest for the Licence to have been revoked having regard to the evidence now before the Tribunal and whether the Applicant is a fit and proper person who can be trusted with category AB firearms without danger to public safety or the peace s. 11(3).

Undisputed evidence of events on 12 and 13 January 2013

12. The immediate events which led to the Alleged Offences and the dispute before the Tribunal occurred on private property (“Additional” or “the property”) near Tottenham State Forest late in the afternoon of 12 January 2013 and at the Applicant’s home on the evening of 13 January 2013. The Applicant was on the property in accordance with the oral request of its owner for various reasons including shooting vermin. Mr Crowe and Ms Bell were in bushland on the property with Mr Crowe’s dog (“Buddy”), without the knowledge or consent of the owner, in a car owned by Mr Crowe.

13. The Applicant fired a shot from inside his vehicle. He subsequently drove along a track and saw Mr Crowe’s vehicle which was stationary on the track. The Applicant stopped and alighted from his vehicle and, while carrying the rifle from which he had fired the shot, walked towards Mr Crowe’s vehicle. A disagreement ensued between Mr Crowe and the Applicant. Mr Crowe left his vehicle, grabbed the Applicant around the throat and shouted threats at him including threatening to kill him. Mr Crowe returned to his vehicle and drove away, leaving the property through a gap in a fence. The Applicant followed Mr Crowe’s vehicle in his own vehicle until Mr Crowe had left the property,

14. That evening, Mr Crowe reported a version of part of the event to Sen Cst Pearce at his police residence adjacent to the Tottenham Police Station. Snr Cst Pearce had just commenced annual vacation leave.

15. The following evening Sen Cst Crawford from Trundle Police attended the Tottenham police station, took statements from Mr Crowe and Ms Bell, informed Sen Cst Pearce that she was dealing with a domestic incident, was obtaining an interim order and was going to seize the Applicant’s guns. Sen Cst Pearce offered to go with Sen Cst Crawford as he knew the Applicant.

16. Senior constables Crawford and Pearce attended the Applicant’s home at about 11:30 pm that evening. The house was in darkness. Sen Cst Pearce knocked on the back door. The side door was opened and the police officers saw the Applicant and his wife at that door. The Applicant was holding the key to his gun safe. Sen Cst Crawford introduced herself and said that the Applicant and his wife knew Sen Cst Pearce. All four persons entered the home.

17. Sen Cst Crawford and Mrs Fulton were in the dining room. Sen Cst Pearce asked the Applicant if his gun safe was secure. Sen Cst Pearce observed that the safe was secure. He and the Applicant commenced removing firearms from the safe. Sen Cst Crawford directed them to return the firearms to the safe and lock its door.

18. A conversation then took place and Sen Cst Crawford informed the Applicant of the purpose of the visit and informed him that his guns were going to be seized.

19. The Applicant and Sen Cst Pearce then removed five firearms from the gun safe. Sen Cst Crawford made an entry at page 15 in her police notebook. Under the name of the Applicant she wrote details of two weapons and one firearms licence belonging to the Applicant and seized by the police and details of three other weapons also seized by the police and wrote “Wallace CAPP – Tottenham”. The entry on page 15 was signed by the Applicant and Snr Cst Crawford and ruled off. Sen Cst Crawford handed a copy of an ADVO to the Applicant and a firearms notice of suspension of his licence.

20. After a further brief conversation the police officers left the Applicant’s home taking with them all firearms removed from the safe and the Licence.

21. Senior constables Crawford and Pearce then attended the address of Mr Crowe and Ms Bell and gave a copy of the ADVO to them. A conversation took place between Sen Cst Crawford and Mr Crowe at that time.

Additional undisputed evidence

22. Mr Crowe is Mrs Fulton’s older brother. They have both lived in Tottenham for about 17 years other than when Mr Crowe served in the Army for six years. Mr Crowe returned to Tottenham some years before these events. The Applicant and Mrs Fulton do not socialise with Mr Crowe and had not done so for several years prior to January 2013 nor since then up to the first hearing date before the Tribunal.

23. The Applicant was 28 years old in January 2013. He had held a minor’s firearms training permit from June 1996 to November 2003 when it expired on his 18th birthday. He was issued a category AB firearms licence on 5 February 2004 to expire on 17 March 2009. The licence was reissued on 17 March 2004 (sic) to expire on 17 March 2014. The licence was suspended on 14 January 2014 and revoked on 7 February 2014.

24. The Applicant’s application dated 2 March 2009 for a category AB firearms licence stated that he required the licence for recreational hunting/vermin control and primary production. The application included a certification by the Applicant that he was the owner or occupier of certain land at “Stansfield”, Tottenham on which he proposed to shoot feral pigs, feral goats, wild dogs and foxes. The application also included a certification signed by P J Hewett that the latter was the owner or occupier of land at “Hillview” Tottenham and that game/vermin to be hunted or controlled on that land included wild pigs, feral goats, wild dogs and foxes.

25. Following the events of 12 and 13 January 2013 the Applicant was charged with the Alleged Offences. The charges were defended and heard at Peak Hill Local Court on 27 September 2013. The Applicant, Mr Crowe and Ms Bell gave oral evidence. The outcome of the Local Court proceedings was that all charges were dismissed and the ADVO was revoked.

26. Other than the charges and ADVO referred to in this decision the Applicant had, up to the date of the hearing before this Tribunal on 5 February 2015, never been charged with a criminal offence nor had an AVO been issued against him.

27. Mr Capp, the owner of 3 of the firearms seized on 13 January, is the Applicant’s step-father.

Contested evidence of the events of 12 January 2013

Mr Crowe’s evidence

28. Mr Crowe’s evidence of the events of 12 January 2013 is set out at [5] to [20] of his statement:

5. About 6.30 pm on Saturday 12 January 2013 Lauren and I took our sheep dog "Buddy" for a run. I usually take our dog out to the Tottenham state Forest as there's a dam out there and it was a really hot day.

6. I drove into the forest which is about 5 minutes out of town. I stopped just inside the forest and I wound down my window and let *Buddy' out for a run. 'Buddy" normally runs in front of the car.

7. We were driving for about 5 minutes along a bush track when I saw a mob of goats ran across the track. I could see 'Buddy” take off after the goats. I followed him in the car but I couldn't see "Buddy". I drove about 3 kms down the track near the railway line and I drove into the scrub.

8. I drove around to were I thought "Buddy" was and I stopped and I got out of the car and I called out. “Buddy" came out of the bushes and I put him back in the car.

9. I couldn't turn my car around as the track was too narrow, so I started to drive ahead to find a spot to turn around.

10. All of a sudden I heard a gun shot. I was still driving at this point, so I stopped my car. The gun shot sounded very loud and sounded it was very very close. I looked back over my shoulder and I could see a white land cruiser with a white snorkel near the driver's side window. I knew it was my brother in law Jason FULTON's Ute. I could see that he had hold of a rifle. I could see the rifle hanging out the window pointing towards the sky. The barrel of the rifle was black and the stock was wood coloured. The rifle had a black scope on it. It looked like a 22/50.

11. Jason's car was directly behind me and about 20 metres away. There was no one else in his Ute.

12. Lauren was petrified she was white as a ghost and didn't say a word at all. She just sat there in front passenger seat.

13. I could see Jason walk towards me in my front mirror. He was carrying the rifle with both hands in front of him. The barrel of the rifle was pointing backwards towards his ute. When Jason was a couple of metres away he said 'What the fuck you think you are doing" Jason started to yell `You been poaching" He went on about me yabbying somewhere, he was just ranting and raving. While he was ranting and raving I could see that he didn't have control of the rifle. He was moving the rifle around while he was yelling.

14. I said to Jason "I don't want to listen to your shit". I put the car into drive and went to drive off. I was still looking at Jason as he was standing out beside my driver door. I could see Jason lift the rifle up with both hands and he used his right hand to cock the rifle. Jason pointed the barrel of the rifle directly at the rear driver's side tyre. The barrel of the rifle was almost touching my tyre so I stopped my car.

15. Jason didn't say anything he looked mad, his face was red and he had a very angry look on his face.

16. At that stage I got angry cause I thought he wouldn't let me leave. We both started to argue, was still seated in my car. We just yelled at each other about how much we didn't like each other.

17. I said "You're a big man with a gun" Jason just keep raving and ranting. I had enough so I hopped out of the car and I went at him. I grabbed Jason by the throat with my left hand and I had my right hand holding his left arm. Jason was holding the rifle by the barrel with his left hand.

18. I yelled at Jason and I said "You're a fuckwit" 'I said "If you ever point a gun at me or my girlfriend ever again I will kill you". I let Jason go and I walked back to my car with my back to him. I got back into my car and I drove away. I didn't look back.

29. Sen Cst Pearce’s statement of his conversation with Mr Crowe on the evening of 12 January includes:

He Said - "I'm sorry Andy, it's not urgent, I just wanted to ask you something"

I Said - "What do you need to know?"

He Said - "I just want to know if I can be in trouble for trespassing as my dog ran away and into a property and I chased after him"

I Said - 'Which property”

30. Sen Cst Pearce and Mr Crowe discussed the location of the property and Sen Cst Pearce informed Mr Crowe it was probably “Additional” owned by Mr Jimmy Gizis. The conversation then included the following:

I Said - "It is an offence to enter someone's property without their consent, why didn't you just go around to the front gate and ask if you could retrieve your dog?"

He Said - "I don't know, I just went after my dog"

I Said - "Ok if someone complains then you'll have to explain what you were doing on their property"

He Said - 'Would they be allowed to shoot at me for being there?"

I Said - "What are you talking about?"

He Said - "When I was trying to get my dog back, I heard a gun shot, so I stopped where I was and this car came up to me and this fella got out and I thought he was going to shoot me tyres out so I took action and grabbed him by the throat, he just sort of freaked and I told him don't come at me with a gun in your hand, fucken kill you"

I Said - "Hold on a minute Luke, this is serious, why didn't you ring the Police straight away?

He Said - "I'm not scared of him, I just wanted to know if I'd be in trouble for going on his farm".

I Said - 'Who was it?"

He Said - I'm not telling you"

I Said - "Who was it then, people should not be walking around with firearms"

He Said - "Like I said, I'm not going to tell you, it's all sorted, I just wanted to make sure I don't get into trouble for trespassing"

I Said - "You need to report this to Police, I can organize that for you, Judith and Maureen are on duty and they can come up"

He Said - "No, it's OK, I want to go home and talk to my girlfriend first and then I'll ring"…

CROWE walked away and I said, "Why didn't you use the 'E' phone?" He said, "I did and I don't think it's working"

I went around and checked the 'E' phone. A person on the other end stated that no calls had been received from anyone at Tottenham.

31. Mr Crowe gave evidence in the Local Court proceedings and the learned Magistrate had the opportunity to observe him. His Honour’s reasons included the following concerning Mr Crowe:

Constable Pearce's statement reflects the fact that Mr Crowe came to see him. Mr Crowe was a little bit coy about what he was seeing him for and curiously seemed more concerned about being charged with trespass on property which would probably have carried a couple of hundred dollar fine as opposed to telling the truth about the, initially about what had occurred with his brother-in‑law…

Mr Crowe has an axe to grind…

When he gave evidence … He gave a version which was reasonably straight-forward and he was reasonably straight-forward in coming forward about his threats to the defendant in the circumstances, and talks about the way the gun was carried and the like being pointed back towards the back of the car…

Mr Crowe I think was not so much intimidated but rather somewhat indignant about and perturbed about the fact that the defendant would come anywhere near him with the gun. And if I accept the defendant's evidence about the bolt I must reject Mr Crowe's evidence about that and that was one of the issues that caused him concern about seeing what he believed to be a live round in the, being placed in the chamber. If I reject that then I have to reject that he had the fear about being, having a loaded gun…

Ms Bell’s evidence

32. Ms Bell’s statement regarding the event included the following:

About 7 pm on,the 12th January 2013 I went for a drive with Luke. We had Lukes dog “Buddy" with us. We normally drive out to the forest at the end of town towards Albert. Luke was driving and I was seated in the front passenger seat.

We drove out to the forest and 'Buddy" was running out in front of the car as he normally does. Then I saw some goats run just in front of our car and "Buddy" took off after the goats. Luke started to drive in the direction that `Buddy had run off to.

We were driving down the road and it wasn't too far and Luke found "Buddy". I think we were in a property beside the forest, but I don't know the name of the property or who owns it.

We got "Buddy" into the car and we were driving down the road and the next thing I know I heard a loud gunshot. I looked behind me and I could see a white Ute behind us. I saw a man driving and I said to Luke "Is that the man that owns the property" Luke said "No its Jason"

I could Jason get out of the drivers seat of the car and he was holding a gun in his left hand. The gun had a scope on it and it was brown in colour. Jason walked towards our car.

Jason had started to shout at Luke. I couldn't really remember what Jason was shouting as was concentrating on the gun. Jason was at the driver's side window shouting at Luke.

I could see Luke try to drive off, Luke put the car in gear and then I could see Jason move his hands and pull a stick thing that was on the gun. I could see Jason aim the gun at the back tyre on the driver's side. I think Jason said "If you drive off I will shoot your tyres out"

Luke said "Don't be an idiot". Jason continued to shout at Luke. Eventually I could see Luke get out of the car and I could see Luke have his hands around Jason neck. I couldn't hear what was being said as "Buddy" was trying to get out of the car.

I was really scared, I was worried that the dog was going to get shot or Luke was going to get shot. I could see Luke walk back into the car and we drove off.

I was terrified as I don't really know the Jason and I had never seen a gun that close before. I thought that Luke was going to get shot.

33. Ms Bell gave evidence at the Local Court proceedings. His Honour’s relevant observations included the following:

she appeared to be an impressive witness. She answered questions concisely and was responsive. She believed she heard what was a gunshot. She said that when she first saw the defendant come from the car he had the gun pointed down his left side but that he changed from hand-to-hand from time-to-time. When she first saw the firearm she turned her head forward and I find that from that point in time she was petrified and terrified… and if she was genuinely petrified and terrified I also can accept that her recollection of events may have been somewhat clouded by that adrenalin and that fear,

Her recollection of events could have been influenced by the discussion she had with Mr Crowe when he had first seen police and talked about what to do with the matter. She conceded about her concern for being on a visa such that could be influenced a conviction for trespassing. That was her concern and in the real world probably wouldn't mean anything to the Australian authorities but that was her concern

She says here recollection was the defendant saying, "If you drive off I'll shoot your tyres out", but Mr Crowe did not give evidence to that effect and certainly did not say that to police. And she conceded that no calls were made to police and that is because of this visa issue but then subsequently there was the complaint made.

She does not give any evidence about seeing the gun cocked or…a cartridge being ejected from the firearm. She was concentrating and looking at the defendant and the firearm and just seeing it pointed down. There was this scuffle and that she was terrified by the scuffle between the two men and then they drove off…

The female witness Miss Bell, as I said, came across well but she was recalling evidence that occurred in a situation when she was terrified and petrified a short instance. Seeing a firearm in or around close proximity. Mr Crowe as an axe to grind and there was some variances in versions given. Some curious differences as well in his actions.

The Applicant’s evidence

34. The Applicant’s statement included:

3. On Saturday 12th January 2013 I was out at a property known as "Additional" Tottenham, which is owned by Dimitrios Gizis ("Jimmy"). Jimmy lives in Sydney. At that time, the dams were all low and he had cattle that were bogging, so I would go out and check the cattle for him. I have an informal relationship with Jimmy in respect to his property. In return for doing things like checking his cattle and vermin control, I am able to cut wood on Jimmy's property. This arrangement has existed for some years.

4. On that day, because it was just about dusk, I had a rifle with me to shoot any vermin I saw. Jimmy's property borders the Tottenham State Forest. I farm on a property known as "Stansfield", which is approximately 4 kilometres from Jimmy's property. Because of the Forest, we have to be very vigilant in the control of pigs, goats, roos and foxes, that all have significant impacts on our faming activities. The goats mainly live on Jimmy's property and that of another neighbour by the name of Pete Hewett because there is no food for them in the forest.

5. On 12th January 2013 I had just shot at a group of pigs, when I noticed a vehicle was stopped about 80 to 100 metres ahead of me on private property.

6. For a period of approximately 18 months, the fence at a point between Jimmy's and the forest and at another point on to the road, has repeatedly been pushed over. Each time Jimmy stood the fence up again, it would be knocked over again.

7. My brother in law Luke Crowe was one of the people who was known for trespassing on Jimmy's property. Luke lives in a house owned by my in-laws with approximately 2-3 acres around it. He has up to a 100 goats living on the 2-3 acres, which he catches one at a time in the forest or on Jimmy's block with the help of his dog, and then takes back to town in his Elantra sedan. He then sells the goats.

8. I approached the stopped vehicle which was on private property. At the time I had my gun in the crook of my arm because I had been shooting the pigs. I was not sure who was in the vehicle, but that was not what determined me to take the gun with me. I could see 2 heads in the vehicle, and I felt it was more secure to have the gun under my immediate control than to leave it unattended in a vehicle. My understanding of the gun laws is that I either have to have the gun on my person or locked away. When I was professional roo shooting I used to have a lockable cable which allowed me to secure the gun to the rack in my vehicle (after removing the bolt), but I did not have anything like that with me that day. As I exited my vehicle I ejected the spent cartridge. I removed the bolt and put that in my shorts pocket to render the gun safe.

9. I did not cock the gun. I did not wave it around. I held the gun at my side pointed at the ground.

10. When I approached the vehicle my brother in law Luke Crowe got out of the vehicle. He said to me words to the effect of "Put the gun down so

11. I said to Luke words to the effect of "You are trespassing, you have no right to be here, leave and don't come back".

12. He continued to say words to the effect of "I'm going to smash you". He then shoved me in the chest, said to me something to the effect of "I'll get you" and drove off.

13. I followed Luke for some distance as he left the property. He did not turn around and go back the way he came, instead he drove a different route over private property until he reached a gap in the fence by which he would have reached the main road back to town.

35. In his evidence to the Tribunal the Applicant said he had held a gun licence since he was about 12 years old, he had been a professional kangaroo shooter for a few years and used weapons for his farm. He shot regularly both for recreation and at work and was very familiar with guns.

36. On 12 January 2013, before approaching Mr Crowe’s car, he had just shot at some pigs. Mr Crowe’s car was a couple of hundred metres away at that time. He stopped his vehicle near Mr Crowe’s, ejected the spent cartridge case and took the bolt out of the rifle he had used. If Mr Crowe’s car had not been there he would have continued shooting at the pigs.

37. The Applicant said his vehicle had no central locking and as the window on the passenger’s side was wound down at the time he stopped behind Mr Crowe’s vehicle it was easier to strip the bolt from the gun and carry it than lock the vehicle. He was used to having it in his hands and had no particular intent at the time he walked towards Mr Crowe’s vehicle.

38. He had little to do with Mr Crowe and had last spoken with him some years earlier. Mr Crowe was a shearer. The Applicant said that he himself worked seven days a week, did not go to a hotel, did not drink or smoke and he did not mix in the same company as Mr Crowe. When he saw Mr Crowe in town they did not have any conversation.

39. The Applicant did not agree that there was an ongoing family feud. Mr Crowe did not like him and he avoided Mr Crowe because he was not a confrontationist. Reference was made by the magistrate in the Local Court proceedings to “the bad blood between” the Applicant and his wife on the one hand and Mr Crowe on the other. The Applicant said it was because of different personalities and his wife was disappointed with her brother.

40. The Applicant referred to his continuing need for a firearms licence to deal with vermin on farming properties, both his and others. He said that several people had asked him to shoot vermin on their properties and he agreed to do so. He could not recall whether he had originally approached them or they had approached him, it was several years ago.

41. When asked why he was at the property on 12 January 2013 he said that it was very dry at the time, cattle kept bogging down and he checked the property to assist the cattle to get out of bogs. He was also there to deal with vermin.

42. Dr Thompson informed the Applicant that he needed written permission to shoot vermin on other people’s properties. The Applicant said that he did not know written permission was required at the time. He had written permission for some properties and an OK for other nearby properties. An owner had asked him to keep an outlook to stop poaching.

43. Dr Thompson repeated that the Applicant needed written permission in order to shoot. The Applicant said that if Dr Thompson showed him evidence of the legislation he would obtain written permission.

44. The Applicant described the track as windy as it snaked through a wooded area. He was asked where the track started and ended and said there were two points of access: one southwest Tottenham Road and the second where trespassers pushed over a fence near the railway at a north-western point. There were no gates near a power-line easement, a gate was in the middle of the fence and the fence had been pushed down. There was no gate where the track left the boundary and joined the main road, once again, the fence had been pushed down. The access to the back paddock was only through other paddocks and the gates between paddocks were locked.

45. The Applicant said that he shot from the vehicle with his left hand and he wrote left-handed. The vehicle was stationary when he shot. The rifle he was using at the time had a right hand bolt action. After he saw Mr Crowe’s vehicle he drove to within about 20 m of it. He said he had not applied the safety to the rifle because there was no spent round in the rifle and the bolt was not pulled back.

46. Dr Thompson asked the Applicant why he approached the vehicle. He said that he was the only person allowed to be on the property when Jim (the owner) was not there.

47. Dr Thompson put to the Applicant that he knew Mr Crowe was in the vehicle when he first saw it. The Applicant denied that assertion and said that he saw two silhouettes. The back window was dirty and the dog was there. The vehicle was used to transport goats. The owner of Additional had thought that Mr Crowe or another person was taking his goats, this was why he commented about Mr Crowe trespassing. Dr Thompson asked how he knew that Mr Crowe took goats. The Applicant said that he had been told by several people, including a person he named, that Mr Crowe’s vehicle comes back into town with goats. Mr Crowe catches goats alive with his dog and then sells the goats.

48. The Applicant said he left the keys in the car as it was in the middle of an 800 acre paddock. Dr Thompson asked if he would do the same if it had been a vehicle other than Mr Crowe’s. The Applicant said that he would do the same and the most secure way of safeguarding his weapon was to carry it, he had placed the bolt in his shorts after ejecting the cartridge case. He did not know whether Mr Crowe had a weapon at the time that he walked up to Mr Crowe’s car.

49. Dr Thompson asked the Applicant when he recognised Mr Crowe. The Applicant said he recognised Mr Crowe when he reached the vehicle. He asked Mr Crowe why he was on the property and Mr Crowe said he was just driving round. The Applicant said that Mr Crowe would have to leave the property. At that time the Applicant was holding the rifle through the action near his left leg.

50. After the Applicant told Mr Crowe that he was trespassing and needed to leave Mr Crowe said “I’ll do what I want.” The Applicant said there have been signs of people here for a while, if I see you again I will call the police. People have seen you with goats.

51. Ms Bell said to Mr Crowe “let’s leave”. Mr Crowe said “No. I’ll fucking smash you. Put the gun down”.

52. Dr Thompson asked if it occurred to him that he would be frightening people by having a rifle. The Applicant said “No, there was no reason to be scared”.

53. When Crowe got out of the vehicle the Applicant backed off about 2 m from the vehicle. He denied that he had raised the rifle. Mr Crowe pushed him and swore. The Applicant moved about 3 m away from the vehicle. Mr Crowe said “I’m gonna fucking get you”. The Applicant did not feel intimidated. After Mr Crowe drove away he followed him keeping a distance of about 100 to 150 m between the vehicles until Mr Crowe’s vehicle left the property. The Applicant then went to the other paddocks to check the animals and then left Additional. He did not reload his weapon nor did he put the bolt back in.

54. Dr Thompson asked the Applicant questions arising from Mr Crowe’s statement.

1. In relation to paragraph [10] Dr Thompson suggested that at the time that the Applicant fired the rifle he was very close to Mr Crowe’s vehicle. The Applicant said that’s not true.

2. In relation to paragraph [13] Mr Crowe said that the Applicant denied he had said “what the fuck you think you are doing”. In relation to “yabbying” the Applicant said that photos had been taken by an overseas visitor at Christmas 2012 which showed Mr Crowe and two others climbing through fences and trespassing in order to go yabbying.

3. The Applicant said that the rifle weighed about five and half kilos and was a metre long, he did not move it around.

55. At [14] Mr Crowe alleged that when he started to drive off after his initial conversation with the Applicant he saw the Applicant lift the rifle up with both hands, he used his right hand to cock the rifle and pointed its barrel directly at the rear driver’s side tyre, the barrel was almost touching the tyre. The Applicant denied the allegation.

56. Mr Crowe said at [15] that the Applicant “looked mad, his face was red and he had a very angry look on his face”. The Applicant said he was irritated not mad, his purpose in going to the vehicle was to tell the occupants to leave.

57. I made a written note at this point during the Applicant’s cross examination that he was a very convincing witness who gave detailed explanations in relation to the questions asked of him.

55. At [17] Mr Crowe said that he grabbed the Applicant by the throat with his left hand and his right hand held the Applicant’s left arm because the Applicant was holding the rifle by the barrel with his left hand. The Applicant said that Mr Crowe grabbed his throat with both hands, he did not grab the hand holding the gun. Mr Crowe tried to instigate a fight and the Applicant did not wish to fight him. The Applicant regarded Mr Crowe as a violent person and said that Mr Crowe had previously pleaded guilty to assault on a woman and had been placed on probation with no conviction recorded.

56. The Applicant denied Dr Thompson’s assertions that:

1. at the time the Applicant use the firearm he was aware that the vehicle ahead on the track was Mr Crowe’s vehicle.

2. a reasonable bystander would believe that the Applicant had an intention to intimidate.

60. The Applicant confirmed that when he had a professional hunting licence he had a lock cable in the vehicle to secure weapons. He did not have such a cable in his vehicle on 12 January.

61. The Applicant said that Mr Crowe’s assertion at [9] that the track was too narrow to turn around, was not true. The Applicant also said that he had asked Sen Cst Crawford to go to Additional and have a look at the site so that she could see the situation for herself regarding the track. He said that Sen Cst Crawford refused to go to the site.

Contested evidence of events of 13 January 2013

Sen Cst Crawford’s evidence

62. In her statement Sen Cst Crawford said:

3. On Sunday 13th January 2013 I was called to the township of Tottenham in relation to a domestic incident involving a firearm.

4. I had a conversation with victim Luke CROW at the Tottenham Police Station and as a result of that conversation I took a victim statement from him. About 9.30 pm victim and witness Lauren BELL attended the police station and I took a statement from her.

5. As a result of the information contained in both of these statements I applied for and was granted an interim Domestic Violence Order.

6. About 11.30 pm Senior Constable PEARCE and I attended number 169 Racecourse Road, Tottenham the home of the accused Jason FULTON. When Senior Constable PEARCE and I arrived at the premises the house was in complete darkness. Senior Constable PEARCE and I took some time before we could raise someone.

7. The accused Jason FULTON and his defacto appeared at the rear /side door. I could see the accused with a key in his hand. The accused defacto said “You frightened me, I heard someone outside and Jason he went straight for the safe key"

The accused said "Yeah I was going straight for the safe" I could see the accused hold up to his chest a single metal key.

8. I walked up to the rear door and I said °Hello my name is senior constable CRAWFORD from Trundle Police and you know Pearcey"

The accused defacto whom I do not know her name said "Come in inside". Senior Constable PEARCE walked in front of me with the accused, I followed the accused defacto inside into the dining room area…

…

10. I said “I would like to explain a few things first".

I said "Jason we are here tonight as there's been an allegation that about 6.30 pm yesterday you were out near the Tottenham State Forest and you have driven up behind Luke CROW. He has stated that you have stopped your vehicle a white ute with a white snorkel and you have walked up to his vehicle whilst armed with a rifle. He has went on to say that you both had an argument and when he has went to drive away, you have pulled back the bolt action of the firearm and pointed it at his rear tyre, now he hasn't said that you have threatened him or pointed the firearm at him, but because of those actions I have taken out an AVO and as a result I have suspended your firearms licence and now have to seize your firearms, Do you understand that"

The accused said "That's not how it happened"

I said "Jason I will give you the opportunity to be interviewed if you would like to but I would suggest that you seek legal advice first"

The accused said "He was trespassing, I’m not going to lie I was carrying the gun, I got out of my car and I walked up to him I wasn’t going up to him empty handed, he's was/in the army"

I said "It sounds as if it got heated and you did something silly in the heat of the moment but you can’t take a gun to a fist fight" I will have to seize all these firearms until the matter has been dealt with"

…

13. Senior Constable PEARCE had a conversation with both parties and then Senior Constable PEARCE and I left the address.

14. Soon after Senior Constable PEARCE and I attended the victims address at 18 Bobadah Road, Tottenham and gave a copy of the ADVO to the victim and his girlfriend…

Sen Cst Pearce’s statement

63. In his statement Sen Cst Pearce said:

13. About 11.30pm, I attended a property on Racecourse Road Tottenham which I know to be the property of Jason FULTON with Senior Constable CRAWFORD. When we arrived, the home was in darkness, I knew someone was home as both their vehicles were in the shed. I knocked on the rear door several times without answer. FULTON'S dogs were barking loudly and I thought surely someone should hear us. I continued to knock loudly for some time and then we heard someone opening the side door. Tanya and Jason FULTON were at the door and looked surprised to see us. I saw Jason holding something next to his chest. Senior Constable CRAWFORD introduced herself and me to them and we were asked to come inside.

14. I was walking along the veranda with Jason and thought that Senior Constable CRAWFORD and Tanya were following. I asked Jason if his gun safe was secure arid he said, "Yes, I've got the key, I thought someone was after us" I saw that the gun safe situated near the eastern wall was locked and secure. Jason asked what was going on and I told him that there was an incident yesterday between him and CROWIE, Judith would explain it to him and were all his guns in the locker. Jason said, "Yes, show you".

15. I said, "Jason, it is normal procedure for firearms to be held be Police for 28 days with any domestic incident and mate, this is Judith's job not mine, I'm only here because I know you, she'll let you know what's going on"

16. I then heard Senior Constable CRAWFORD call my name and say, "What are you doing?" I told her that I was getting the firearms and she requested that they be put back in the safe until she spoke to him.

17. I then heard Senior Constable CRAWFORD inform Jason of the purpose of our visit.

18. During the conversation between Senior Constable CRAWFORD and Jason FULTON, I was talking to Tanya FULTON. I could hear snippets of what was being said and at one stage I heard Jason say words to the effect of "I'm not going to lie, I was carrying a gun, I got out of my car and walked up to him, I wasn't going up to him empty handed, he was in the army you know"

19. At the completion of the conversation, Senior Constable CRAWFORD informed FULTON that his guns were going to be seized. I then assisted with removing the firearms from the cabinet and securing them in the Police vehicle. While I was walking back and forth to the Police Vehicle, Tanya approached me and said, "I thought when I heard voices and banging that Luke was coming to get Jason. Jason told me that when Luke was driving away, he yelled out of his window, (I'm going to get you)".

20. I informed Tanya that I would speak to Senior Constable CRAWFORD and we would go and see Luke and ask him to stay away from their house.

21. We left the location and went to 18 Bobadah Road where I saw Senior Constable CRAWFORD hand CROWE a copy of the ADVO. I heard Senior Constable CRAWFORD ask CROWE about making a comment as he was driving away and I heard him deny making any comments or threats.

The Applicant’s evidence

64. In his statement the Applicant said:

14. On the night of Sunday 13th January 2013 I was asleep when I was woken by my wife Tanya who said to me she thought there was somebody outside as she could hear voices. We listened for a few minutes, but I could hear nothing and rolled over and went back to sleep.

15. I then heard our dogs, 2 basset hounds which at that time were tied up at our back door, barking loudly. I got up and put on a shirt and tried to see who was outside.

16. I could see flash lights, not at the side of the house where you enter our yard as you approach the house, but at the back of the house where the patio is. To get to that point of our yard you have to go over the garden bed, which is bricked to about knee height and has shrubs growing in it. The garden bed is about 80 cm wide.

17. I could not hear any voices.

18. As I approached the side door of the house, which is the main entry/exit point, I collected the key to the gun safe. I cannot now remember where it was hanging at the time, as I move it around, but I think it was either in the kitchen cupboard or the dining room buffet, both of which I had to pass to get to the door. I picked the key up because I did not know who was outside and I felt it was safer to secure the key on my person. I did not touch the safe or go near the safe that night until I did so with the police.

19. With respect to the events of 12 January 2013, I deny saying words to the effect of "I wasn't going up to him empty handed, he was in the army." I did acknowledge to police that I got out of the car, walked up to him and had the gun in my hand. At the time I got out of my car I could not see who was in the other car. I knew the car was owned by my brother in law, but I could not see who was in it. My conscious thought about the gun was that it was safer with me than left unattended in a vehicle and that the law required me to carry the gun when I had no means of securing it.

20. With respect to the events of 13 January 2013, I cannot recall exactly what I said to police about the safe, but I do recall that when I heard the noise outside I made sure I had the safe key on my person as a precautionary measure against anybody else obtaining access to the safe. I did not have any intention of producing a gun myself.

65. In his evidence before the Tribunal the Applicant denied that he went to the gun safe from his bed on the way to the door after seeing lights outside his house. He collected the gun safe key on the way to the door to make sure that everything was secure then realised that it was the police. He denied saying to Sen Cst Crawford that he knew that Mr Crowe was in the Army. He denied saying that he would not go up to him empty handed. He also denied that it was possible that he had forgotten saying to Sen Cst Crawford the statement she attributed to him. He said he went up to him and he was not empty handed (he was carrying the rifle).

66. The Applicant said that Sen Cst Crawford had apologised to him several times for having to go to his house. She told the Applicant that she had not applied for the AVO she served on him but the Applicant found out later that Sen Cst Crawford had in fact applied for the AVO.

Mrs Fulton’s evidence

67. In her statement Mrs Fulton said:

5. On the night of Sunday, 13 January 2013 I was woken by a noise, and thought I could hear voices. I woke my husband Jason, who listened but we could not hear anything. Then the dogs began to bark. After we got up, we saw flashlights out at the back of the house. We were not expecting anybody to come to the back of the house, because people normally knock on our side door as the path from the gate into the yard comes to that door.

6. After I heard somebody say "It's the police," I went to the back door and opened it. In the door was Sen Cst Pearce. At the time I said words to him to the effect of "Is something wrong?"

7. Sen Cst Pearce said to me words to the effect of "Not really. However, was there a run in between Luke and Jason yesterday? We are here to seize Jason's guns."

8. I spoke to Sen Cst Pearce at the time. Sen Cst Crawford was somewhere in the yard, but not involved in the conversation and not close to us.

9. I did not say, 'Jason went straight for the safe key," I may have said words to the effect of, "Jason has the safe key with him" after Constable Pearce told me they were there to take Jason's guns.

68. In her oral evidence Mrs Fulton was asked if the Applicant went to the gun safe after they saw lights outside their house. She answered “no”. She was asked if the Applicant said he would get a gun. She again answered “no”.

69. When Sen Cst Pearce came to the door of her house Sen Cst Crawford was some 5 m away.

70. Mrs Fulton was informed that Mr Crowe had told Sen Cst Crawford that he was re-establishing his relationship with Mrs Fulton. She responded that there had been no change in the relationship for the last five years.

71. In cross-examination Mrs Fulton said that she did not communicate with her brother. He (her brother) was a party animal and we (her husband and herself) were not. Dr Thompson referred to the magistrate’s statement in the Local Court proceedings to the effect that there was “bad blood-no holding back” and asked if she gave that evidence. She said no. She was asked about any offences committed by Mr Crowe. Mrs Fulton said that he had assaulted a woman and that she had been told of the assault by her parents. After Mr Fulton had told her that Mr Crowe had threatened him she wondered what it might mean and agreed that it was possible that he might come to their house. She was asked whether when the dogs were barking she had thought that it could possibly have been her brother. She replied that it was not likely.

Consideration

72. Unfortunately none of Snr Cst Pearce, Mr Crowe or Ms Bell appeared before the Tribunal. Accordingly I did not have the benefit of observing their demeanour while giving evidence nor the opportunity to ask them questions concerning their written statements.

73. In the Local Court proceedings His Honour’s comments concerning the evidence of Mr Crowe included that “he was a little bit coy“ when speaking with Snr Cst Pearce, “he seemed more concerned about being charged with trespass… as opposed to telling the truth about… what had occurred with his brother in law” and he “has an axe to grind”. His Honour rejected certain of Mr Crowe’s evidence.

74. I also have concerns about the accuracy of some of Mr Crowe’s statement, commencing with his reason for trespassing on Additional. Mr Crowe’s rationale was that he was following his dog in an attempt to recover it and when he found his dog, the track was too narrow to turn his vehicle around. Mr Crowe’s evidence from [5] to [8] was that he had taken his dog for a run in a state forest as there was a dam there and it was a really hot day. After letting the dog out it went for a run along a bush track and a few minutes later chased a mob of goats which ran across the track. Mr Crowe attempted to follow the dog in his vehicle but he couldn’t see the dog. He then drove about 3 km down the track. He did not say so but having regard to the Applicant’s evidence it seems that Mr Crowe then drove over or through a fence onto private property. Mr Crowe says he drove into the scrub (on the private property) to where he thought his dog might be. He stopped his car, got out, called the dog’s name and the dog appeared out of the bushes, apparently having been out Mr Crowe’s sight for some time and last having been seen several kilometres away.

75. It seems to me that Mr Crowe’s story, albeit supported by Ms Bell to an extent, is highly implausible. I believe it more likely that Mr Crowe was on Additional attempting to catch goats which he would later sell and was very embarrassed when he was found on the property, especially being found by his brother-in-law with whom he had a poor relationship. I make no finding in that respect as it is not necessary to do so for the purpose of this decision.

76. At [33] above are comments by His Honour in the Local Court proceedings in relation to Ms Bell’s evidence before him. He said that although she came across well, she was giving evidence in relation to a situation in which “she was terrified and petrified” and her recollection could have been influenced by her discussion with Mr Crowe when he first saw police.

77. I observe that Ms Bell’s evidence is at times at variance with that of Mr Crowe. However I also observe that although her evidence was “I was terrified … I had never seen a gun that close before..” the words she used in relation to her initial sighting of the weapon included “he was holding a gun in his left hand. The gun had a scope on it..” The reference to a “scope” for the telescopic sight on the rifle is the same term used by Mr Crowe in his statement. I also observe that Mr Crowe gave his statement to Snr Cst Crawford at the Tottenham police station about 7:30 pm on the evening of 13 January. He then went to his and Ms Bell’s home some two blocks from the station to get her. Snr Cst Crawford recorded that Ms Bell attended the station at about 9:30 pm to give her own statement and Mr Crowe was present while she gave it. I find there is a strong likelihood that before Ms Bell attended the police station she and Mr Crowe discussed his evidence and the evidence she would give. Without making a finding I observe that Ms Bell’s discussions with Mr Crowe may have influenced the content of her statement.

The safe keeping issue

78. This issue relates to the action taken by the Applicant when he stopped and alighted from his car and walked to Mr Crowe’s vehicle.

79. At [7] and [8] in AS the Applicant submitted:

Sections 39 & 40 of the Firearms Act 1996 require Mr Fulton to keep the gun safely, to ensure it is not lost or stolen, to use it or carry it or otherwise to lock it in an approved receptacle. Mr Fulton knew that his vehicle was not an approved receptacle and he carried the firearm. I would submit that in taking the gun with him, he has complied with the requirements of the Firearms Act 1996. (emphasis from AS)

80. The Respondent submitted in RS that s. 39 provided for the relevant safekeeping requirement as well as for safe handling of firearms and safe transportation and safe storage of firearms. The submission was that s. 39 and a publication on the Firearms Registry website, “Transportation of Firearms” “required Mr Fulton to leave the firearm behind in his locked vehicle in the prevailing circumstances on 12 January 2013. Ideally, he would also have taken out the bolt mechanism and carried it in his pocket” and that “Mr Fulton's flawed understanding of such an important aspect of his obligations as a firearms licence-holder is relevant to his status as a licence holder..” The Respondent also submitted that there was no legislative requirement for transporting category A and B firearms.

81. RS contains the following submission at [5.5] and [5.6]:

5.5 Mr Fulton gives an implausible explanation in his affidavit dated 24 November 2014 for taking his rifle with him when he walked towards Mr Fulton's vehicle on 12 January 2013. Mr Fulton says in paragraph 8 of his affidavit that he had two reasons for taking the firearm with him rather than leaving it behind in his own vehicle:

(a) "I felt it was more secure to have the gun under my immediate control than to leave it unattended in a vehicle"; and

(b) "My understanding of the gun laws is that I either have to have the gun on my person or locked away".

5.6 Mr Fulton repeats these reasons in paragraph 19 of his affidavit dated 24 November 2014, which relevantly provides:

... I knew the car was owned by my brother in law, but I could not see who was in it. My conscious thought about the gun was that it was safer with me than left unattended in a vehicle and that the law required me to carry the gun when I had no means of securing it".

82. The Applicant’s evidence to the Tribunal was that in his opinion it was safer to carry the rifle when there was no approved receptacle in which to store it. Before walking to Mr Crowe’s car the Applicant removed the bolt and stored it on his person as there was no available safe receptacle.

83. I observe that in the Local Court proceedings His Honour said “I do not draw any adverse inference in him carrying the rifle towards the car. I accept that he felt that is the safest way to deal with it.”

82. The general requirement in s. 39(1) is that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping and that it is not stolen or lost. The specific requirements for the category A and category B licence held by the Applicant are found in section 40. They require that the firearm must be stored in a locked receptacle of a type approved by the Commissioner “when such firearm is not actually being used or carried”.(my emphasis) I reject the Respondent’s submission that the Applicant was required to leave the firearm in his locked vehicle rather than carry it.

83. I accept the Respondent’s submission, that “ideally, he would also have taken out the bolt mechanism and carried it in his pocket.” The Applicant’s evidence, which I accept, is that this is the action he took at the time.

84. I find that the Applicant took all reasonable precautions at the time to ensure the safekeeping of the relevant firearm (and bolt) and did not act in contravention of s. 39(1). I reject the submission that he contravened a condition of his licence at about 6:30 pm on 12 January 2013 by failing to comply with relevant safe keeping requirements.

Unauthorised use of a firearm

87. RS dealt with this matter and the alleged breach of s. 7A at [7.1] to [7.9].

88. Section 7A states:

7A   Offence of unauthorised possession or use of firearms generally

(1)  A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit.

Maximum penalty: imprisonment for 5 years.

(2)  Without limiting the operation of subsection (1), a person who is the holder of a licence is guilty of an offence under this section if the person:

(a)  uses a firearm for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the firearm, or

(b)  contravenes any condition of the licence.

89. The Respondent submitted at [7] that the Applicant breached section 7A in light of the bad blood between him and Mr Crowe and the Applicant knowing when he stopped behind Mr Crowe’s vehicle that it was Mr Crowe’s vehicle. The Respondent submitted:

7.3 The word "use" in section 7A(1) is defined in section 4(1) of the Firearms Act:

use a firearm means fire the firearm or hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired.

7.4 This is an objective test. The subjective beliefs of Mr Fulton, Mr Crowe and Ms Bell on 12 January 2013 are only relevant to the extent that those beliefs are evidence of what a hypothetical reasonable bystander would have believed. It is also irrelevant if Mr Fulton removed the bolt mechanism on 12 January 2013, as he claims.

7.5 Further, at all material times, section 12 of the Firearms Act relevantly provided:

12   Genuine reasons for having a licence

(1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm.

(2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons:

(a) personal protection or the protection of any other person,

(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section)

7.6 Mr Fulton's personal protection as mentioned in section 12(1) was not a genuine reason for him physically to carry his firearm when he approached Mr Crowe's vehicle on foot on 12 January 2013. Also, there is no evidence that he was authorised to use his firearm for the protection of property as mentioned in section 12(2).

7.7 A reasonable person would have concluded in the circumstances as they existed on 12 January 2013, that Mr Fulton physically carried his firearm towards Mr Fulton's (sic) vehicle for the sole purpose, or the dominant purpose, of intimidating Mr Crowe. The families are apparently still feuding today, judging from Mr Fulton's affidavit dated 24 November 2014. Mr Fulton's propensity to resort to the use of his firearm in the course of his "bad blood" relationship with Mr Crowe is just as important to the question of him having access to firearms today as it was two years ago.

7.8 That propensity is also demonstrated by the events late in the evening of 13 January 2013 when the police attended at Mr Fulton's house. The Tribunal can be satisfied, especially from Mrs Fulton's affidavit dated 24 November 2014, that Mr Fulton thought it was likely to be Mr Crowe outside. Mr Fulton's explanation for why he had the key to his gun safe on his person when he realised it was the police, is implausible.

90. In relation to [7.3] and [7.4] I observe that, not only were the criminal charges against the Applicant dismissed in September 2013, the ADVO was also revoked. Dr Thompson conceded that the standard of proof on which His Honour based his decision in relation to the ADVO was the civil standard. Accordingly it seems that His Honour has already found that it is more likely than not that the Applicant did not use the firearm or hold it so as to cause a reasonable belief that it would be fired. With respect, having regard to the evidence before the Tribunal, I concur with His Honour.

91. During the course of the hearing Dr Thompson said that the words “sole purpose, or the dominant purpose, of intimidating Mr Crowe” at [7.7] meant “personal protection or protection of property”.

92. The Respondent submitted at [7.6] that there was no evidence that the Applicant “was authorised to use his firearm for the protection of property as mentioned in section 12(2)”. I reject that submission and have regard to the words in brackets in s. 12(2)(b) above and relevant parts of s. 12, set out below, which were not set out in RS. They are:

(4)  Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:

(a)  states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and

(b)  is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.

Table

....

Reason: recreational hunting/vermin control

The applicant must:

(a)  be the owner or occupier of rural land, or

(b)  produce proof of permission given by the owner or occupier of rural land,… or

Reason: primary production

The applicant must:

(a)  be a person whose occupation is the business of a primary producer, or who is the owner, lessee or manager of land used for primary production, and

(b)  state that he or she intends to use the firearm solely in connection with farming or grazing activities (including the suppression of vertebrate pest animals on the land concerned).

…

Reason: business or employment

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought.

Reason: occupational requirements relating to rural purposes

The applicant must be employed or engaged in a rural occupation that requires the possession or use of the firearm for which the licence is sought.

93. It is clear from Tabs 1 and 4 in the s. 58 documents that the Applicant applied for and was granted a category AB firearms licence for purposes including the hunting or controlling of game/vermin on the farming property he occupied, and on rural land owned or occupied by a Mr Hewitt, for primary production and for humane control of large vertebrate pests.

94. In addition the evidence is that on 12 January 2013 the Applicant was shooting at wild pigs on Additional immediately before driving to Mr Crowe’s vehicle. The Applicant’s evidence was that the shooting was at the request of Mr Gizis, the owner of Additional. I refer below to the provisions of sub-clause 28(4) concerning statutory requirements for relevant authorisation.

95. RS stated at [7.6] that the Applicant’s personal protection was not a genuine reason for him to carry his firearm when he approached Mr Crowe’s vehicle on foot. There is no dispute on this point. The Applicant has not asserted that that was the reason he carried his firearm at that time, indeed he has denied it was for his personal protection. His repeated evidence is that he carried the firearm when approaching Mr Crowe’s vehicle on foot in order to properly secure the firearm. I accept that evidence.

96. I now turn to the submission at [7.7] in RS of “Mr Fulton’s propensity to resort to the use of his firearm in the course of his “bad blood relationship with Mr Crowe”. The undisputed evidence is that on 12 January Mr Crowe physically attacked the Applicant while the Applicant was carrying a rifle. Mr Crowe’s evidence is that he placed one hand on the Applicant’s throat and the other on the arm of the hand carrying the rifle. I prefer the evidence of Ms Bell and the Applicant who both said that Mr Crowe placed both hands on the Applicant’s neck. Mr Crowe acknowledged that he threatened the Applicant. Despite this provocation there is no assertion that the Applicant attempted to defend himself with the firearm he was then holding or in any other way. I deal below with the events of 13 January at the Applicant’s home but I note that even though it may have been possible that Mr Crowe who had made threats on 12 January was at the Applicant’s home late on the night of 13 January, the undisputed evidence is that when the Applicant went to the door he was carrying the key to his gun safe which then contained 5 firearms, he was not carrying a firearm. Accordingly I reject the submission that the Applicant has a propensity to resort to the use of his firearm.

97. Both Mr Crowe and Ms Bell alleged that the Applicant pointed his rifle at a tyre of Mr Crowe’s car. The Applicant denied that allegation. Having regard to my concerns as to the accuracy of the evidence of Mr Crowe and Ms Bell in contrast to the detailed and consistent evidence of the Applicant and his demeanour when he appeared before me, I prefer the Applicant’s evidence.

98. I reject the submission in [7.8] that the Tribunal can be satisfied that Mr Fulton thought it was likely to be Mr Crowe outside his home. I am not so satisfied but even if the Applicant had thought that Mr Crowe might be outside there is no evidence that he resorted to the use of a firearm.

99. I reject as being without any foundation the assertion at [7.8] “Mr Fulton’s explanation for why he had the key to his gun safe on his person when he realised it was the police, is implausible.” The evidence is that the Applicant picked up the key to the safe on the way to the door before he saw that the people outside his home were police. There is no evidence that he went to or opened the safe or sought to arm himself. His evidence that he picked up the key to safeguard the firearms in the safe is highly plausible and I accept it.

The written permission issue

100. Dr Thompson submitted and Mrs Hamilton conceded that the Applicant did not have written permission from the owner or occupier of “Additional” for the Applicant to shoot on the land on 12 January 2013. Dr Thompson extrapolated from this fact that the Applicant was in contravention of s. 24(2)(b)(ii) and clause 28(2) and that it was contrary to or not in the public interest for the Applicant to hold a firearm licence and that he was, or was no longer, a fit and proper person who could be trusted to have possession of firearms.

101. Section 24(2)(b)(ii) relevantly provides:

“A licence may be revoked…if the licensee…contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention”

102. At [8.2] in RS appears the following excerpt from clause 28:

28   Recreational hunting/vermin control—persons who are not members of approved hunting clubs

(1)  If an applicant for a licence (not being a member of an approved hunting club) proposes to establish recreational hunting/vermin control as a genuine reason for being issued with the licence and, in order to do so, is required to produce proof of the permission to shoot on rural land, the applicant must produce with the application:

(a)  the permission in writing, or

(b)  a statutory declaration verifying that the permission has been given,

as evidence that the permission has been given.

(2)  During the term of a licence issued to an applicant referred to in this clause, the licensee may lawfully possess or use a firearm (as authorised by the licence) on land other than the land specified in respect of the application if:

(a)  the licensee has been given the written permission of the owner or occupier of that other land (or of an officer of the agency concerned) to shoot on that other land, or

(b)  the licensee has been given permission, as verified by statutory declaration, by that owner, occupier or agency to shoot on that other land.

(3)  Any permission to shoot on rural land (including any statutory declaration verifying that any such permission has been given) must describe the land to which the permission relates and the type of game to be shot.

103. However RS did not set out the remainder of clause 28 which relevantly provides:

(4)  If a licensee has been given permission to shoot on rural land, the licensee must, on demand made at any time by a police officer or an authorised officer for that land:

(a)  produce the permission for inspection by the police officer or authorised officer, or

(b)  if it is not in the licensee’s immediate possession—produce the permission, as soon as practicable (but not more than 48 hours) after the demand is made, to the officer who made the demand or to another police officer or authorised officer nominated by the officer who made the demand.

…

(5)  A person commits an offence under subclause (4) only if the police officer or authorised officer, when making the demand, explains to the person that failure to comply with the demand is an offence.

(6) ….

104. The Applicant’s evidence was that he had the oral permission of the owner of Additional to shoot vermin, including wild pigs, on the land. There was no evidence that any relevant demand had been made to the Applicant to produce any permission. The Applicant’s evidence was that he could and would obtain and produce written permission if required by law. I accept that evidence and note that the permission could have been in the form of a statutory declaration in accordance with clause 28(1)(b). Accordingly I find that there was no contravention of clause 28 and therefore no relevant contravention of s. 24(2)(b)(ii).

The fit and proper issue

105. The Commissioner had, for the duration of the period for which the Applicant held a firearms licence, that is from February 2004 until 12 January 2013 held the opinion that the Applicant was a fit and proper person to hold a relevant licence and that it was in the public interest that he do so. That opinion changed when the licence was suspended.

106. The Respondent correctly asserted at [3.4] “The issue of whether a person is fit and proper has been considered on numerous occasions by the Courts, the Tribunal, and its predecessor, the Administrative Decisions Tribunal (ADT)” and went on to submit:

3.5 In Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156157,11 the High Court said that the expression 'fit and proper person' generally involves honesty knowledge and ability.

3.6 In the seminal authority of Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11,12 the High Court observed that the expression "fit and proper person" takes its meaning from its context. In certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

3.7 In accordance with these principles, the question of whether Mr Fulton is a fit and proper person involves a value judgement to be made in the context of the particular activity to be undertaken. In Wilkinson v Commissioner for Police [2002] NSWADT 59 the ADT said at ¶25:

25. As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.

3.8 The principles and objects are set out in section 3 of the Firearms Act: (amended by me to include relevant numbering)

(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 this 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 supply 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.

107. In their statements each of Snr Cst Crawford and Snr Cst Pearce have stated, using almost identical wording, that on 13 January the Applicant said words to the effect that when he walked up to Mr Crowe on 12 January he wasn’t going up to him empty handed, he was in the army. The Applicant denied saying that he would not walk up to Mr Crowe empty handed and he denied that he made any reference to Mr Crowe having been in the army. He said he did not walk up to Mr Crowe empty handed, he walked up to him while carrying his rifle.

108. The Respondent initially submitted that the disputed words were contained in the Audit Report made by Snr Cst Crawford shortly after the conversation and that Snr Cst Crawford made a contemporaneous remark of the statement in her notebook. After a consideration of the contents of the Audit Report, Dr Thompson conceded that there was no reference to “the army” in the typed record made by Snr Cst Crawford at the relevant time. The record made at 1:23 a.m. on 14 January 2013 refers to an admission by the Applicant that he was in possession of a firearm at the location of interest and stated “Well I wasn’t gong (sic) up to him empty handed”.

109. Mrs Hazelton submitted that neither of the statements attributed by the police officers to the Applicant were admitted into evidence in the Local Court proceedings. The relevant entry in Snr Cst Crawford’s police notebook appears to have been made on 16 or 17 January 2013. Mrs Hazelton submitted that the entry in the notebook was not made contemporaneously and no evidence was produced to the Tribunal as to the contents of Snr Cst Pearce‘s police notebook. There is no evidence as to the basis on which Snr Cst Pearce recalled the detail of the events of 12 or 13 January. At [4] in AS it is submitted

“there is a strong likelihood that SC Pearce’s statement was prepared with the assistance of the statement of SC Crawford and is not an independent recollection of that evening.”

110. There was no other evidence before the Tribunal to substantiate or refute this submission and I make no finding in relation to it. However, in the circumstances I prefer the Applicant’s version of what he said to Snr Cst Crawford rather than the version in the police officers’ statements.

110. I observe that in her statement Sen Cst Crawford referred to Mrs Tanya Fulton, wife of the Applicant as the Applicant’s “de facto” on four occasions at [7] and [8]. In cross-examination Sen Cst Crawford said she did not know whether the Applicant was married. This is contrasted with:

1. The statement Sen Cst Crawford took from Mr Crowe at about 7:30 pm on 13 January 2013. At [10] Mr Crowe referred to his brother in law Jason FULTONs Ute being behind Mr Crowe’s vehicle and at [20] “Jason is married to my sister Tanya”;

2. The statement in the first paragraph of page 6 of COPS event E163057098 created by Sen Cst Crawford states “The accused in this matter is Jason Fulton who is married to the sister of victim 1 Luke Crowe”.

3. The grounds of the application for an ADVO prepared by senior Constable Crawford and dated 13 January 2013 at 10:32 pm include:

HISTORY OF RELATIONSHIP AND DURATION: PINOP 1 is the brother in law of the DEF. The DEF had married PINOP 1 sister some 10 years ago

4. Page 14 of Sen Cst Crawford’s police notebook, apparently written at about “7:30 pm 13/1/13”, includes the description of “VIC Luke Crow”, “POI Jason Fulton” Tottenham, a redacted section and then “Brother in law”.

112. The grounds of the application for an ADVO prepared by Snr Cst Crawford included in the narrative of the event on 12 January 2013, after Mr Crowe and Ms Bell sighted the Applicant in his vehicle parked behind their vehicle, the following:

PINOP 1 has sighted the DEF holding a rifle out of the driver side window. The rifles butt was pointed up into the sky.

This is consistent with the narrative entered into the Audit Report by Snr Cst Crawford at 10:45 p.m. on 13 January 2013. However it is not consistent with paragraph [10] of Mr Crowe’s statement, recorded and witnessed by Snr Cst Crawford a few hours earlier, the relevant part of which is:

I knew it was my brother in law Jason FULTON's Ute. I could see that he had hold of a rifle. I could see the rifle hanging out the window pointing towards the sky.

113. I observe that it is generally understood that the direction a rifle is pointing is the direction in which the barrel is pointing, not the direction in which the butt is pointing.

114. The Applicant’s solicitor made representations that inaccuracies in Snr Cst Crawford’s notebook indicate “that SC Crawford is not careful about what she does not see as important”. I make no such finding however I have taken certain apparent inconsistencies in Snr Cst Crawford’s evidence into account when considering the weight to be given to her evidence when there is conflicting evidence.

115. RS submitted at [3.9] that the Applicant was not a fit and proper person to hold a firearms licence in that his conduct on 12 and 13 January 2013 was inconsistent with the relevant statutory principles and objects. Having regard to my findings as to the events involving the Applicant which took place on 12 and 13 January I reject the Respondent’s submission.

116. I accept that, to use the terminology of Hughes v Vale, the Applicant was required to display adequate “honesty knowledge and ability” in relation to firearms and the conditions of his licence. The Applicant has, in my opinion, displayed ‘honesty’ and ‘ability’ to appropriate standards.

117. In relation to ‘knowledge’ there is no submission by the Respondent that the Applicant did not have adequate expertise and knowledge of firearms. I find that the Applicant evidenced substantial knowledge of the conditions of his licence. He readily conceded that he was not aware that written permission was required from the owner or occupier of Additional and said that if it was the law, he would comply with it. I am satisfied that he had oral permission from the owner to shoot on the property and I have had regard to the provisions of clause 28(4) to which the Respondent did not refer. I find that there is no evidence before the Tribunal that the Applicant would not have been in a position to provide the relevant permission if a proper request had been made. The Applicant’s knowledge of the licence conditions was not perfect. However I do not regard the evidence before me as to his lack of knowledge as so egregious that his licence should have been revoked.

Public interest and private interest

118. The Respondent provided at [10] a summary of the law in relation to the importance of having regard to the public interest when decisions are made to grant applications for firearms licences or revoke such licences. Set out below is a substantial part of that submission:

10.1 The Tribunal may revoke Mr Fulton's firearms licence if the Tribunal is satisfied that it is not in the public interest for him to continue to hold the licence.22

10.2 The courts and the ADT have consistently held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, the court stated:23 :

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

10.3   In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the ADT's Appeal Panel said in relation to the public interest (at ¶25):

25. The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

10.4 In Constantin v Commissioner of Police [2013] NSWADTAP 16 the ADT's Appeal Panel held that the 'public interest' allows a consideration of issues going beyond Mr Fulton' character to be taken into account at (at ¶33):

33. 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.

10.5   Strict controls on the possession and use of firearms are imposed in the interests of public safety. Ward v Commissioner of Police [2000] NSWADT 28 at [28] is often quoted when considering the public interest in the context of a firearms licence As mentioned above, the Tribunal must be satisfied that there is virtually no risk to public safety if Mr Fulton is given access to firearms..

119. Mrs Hazelton’s submissions on behalf of the Applicant were that he had and continues to have a lawful need for a firearms licence. This is based on his status as a primary producer and the proximity of the land he farms to the forest means that he continues to have a need to destroy feral animals to ensure his farm’s productivity. The Respondent acknowledged that “there can be little doubt about his (the applicants) need in that regard” but pressed the point that the public interest must take priority over the Applicant’s personal interest and that the Tribunal cannot be satisfied that there is “virtually no risk” within the meaning of Ward’s case.

120. It is undisputed that the public interest must take priority over private interests. The Commissioner was satisfied for many years until 13 January 2013 that the Applicant was a fit and proper person to hold his licence and that it was in the public interest that he do so. Having regard to the findings I have made as to the events involving the Applicant which occurred on 12 and 13 January 2013 I am satisfied that there was virtually no risk, in the Ward sense, should the Applicant have continued to hold his firearms licence from the time it was suspended. I am also satisfied, on the material before me that there is virtually no risk in the Applicant being issued with such a licence should he apply for one.

Decision

121. The correct and preferable decision of the Tribunal is that the Commissioner’s decision under review is set aside. I note that the licence the Applicant held in January 2013 has expired through the passage of time. I direct that, if the Applicant applies for a firearms licence after the publication of this decision, the Commissioner shall have regard to this decision.

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

Amendments

16 July 2015 - Updated coversheet

Decision last updated: 16 July 2015