Hazell v Commissioner of Police, New South Wales Police Force

Case •

[2023] NSWCATAD 50

•

10 March 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Hazell v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 50
Hearing dates: 27 February 2023
Date of orders: 10 March 2023
Decision date: 10 March 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: Emeritus Prof G D Walker, Senior Member
Decision:

(1) Decision under review set aside.

(2) A category ABC firearms licence is to be issued to the applicant.

Catchwords:

LICENSING – firearms – licence refusal – fit and proper person – public interest – assault – unregistered firearms – storage – driving offence

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321;

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254;

Briginshaw v Briginshaw (1938) 60 CLR 316;

Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42;

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16;

Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50;

Director-General, Transport New South Wales

v AIC (GD) [2011] NSWADT AP 65;

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218;

Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127;

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117;

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368;

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

McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184;

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10;

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

Texts Cited:

Nil

Category:Principal judgment
Parties:

Terence Hazell (Applicant)

Commissioner of Police, New South Wales Police Force (Respondent)
Representation: Solicitors:
Johnson & Sendall Pty Ltd (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/00248632
Publication restriction: Nil

reasons for decision

  1. The applicant Mr Terence Harold Hazell applied to this tribunal on 22 August 2022 for review of a decision by the respondent Commissioner on 18 January 2023 to refuse his application for a category ABC firearms licence.

  2. The applicant had first been issued with a shooter’s licence under the previous legislation on 22 July 2089, and had received a category ABC licence on 26 September 1997, which was renewed in 2002 and 2007 and revoked on 23 September 2008.

  3. On 6 March 2022 the applicant applied for a new ABC category licence (exhibit R1, pp 60 – 64), which was refused by the Commissioner on 27 June 2022 (id., 65 – 66) on public interest grounds. The refusal notice stated that between 2008 and 2019 Mr Hazell had a documented history of domestic incidents with others that required the assistance of police. On one occasion he was made subject to an apprehended violence order (AVO) and on four of the occasions alcohol had been recorded as a factor. He had also been charged with driving with a middle range prescribed concentration of alcohol (PCA).

  4. The applicant requested an internal review of the refusal decision on 21 July 2022 and on 26 July 2022 a delegate of the Commissioner affirmed the decision (id., 75 – 77). The applicant then applied to this tribunal for administrative review on 22 August 2022, but on 9 December 2022 the parties sought to have the application remitted to the respondent for reconsideration pursuant to s 65 of the Administrative Decisions Review Act (ADR Act) on grounds related to the then state of the evidence. Simon PM made the order for remittal on 9 December 2022.

  5. The respondent’s decision on remittal on 18 January 2023 affirmed the decision to refuse the licence application on grounds related to violent conduct, alcohol use, safe keeping and unauthorized possession of firearms. It was not disputed that the decision on remittal is the reviewable decision in this case. The matter came on for hearing in the tribunal on 27 February 2023, partly in person and partly by AVL.

Applicable legislation

  1. The provisions of the Firearms Act relied on by the respondent are in s 11 (3) and (4):

(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….

(c)  the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant….

(4)  Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of—

(a)  the applicant’s way of living or domestic circumstances….

  1. The issue in this application is thus whether the tribunal can be satisfied that the applicant satisfies s11(3)(a) and (c) and that there is no reasonable cause to believe that he is disqualified by reason of s 11(4)(a).

The evidence

  1. The respondent called no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1), and on cross-examination of the applicant and his supporting witness.

Mr Terry Hazell (applicant)

  1. In oral evidence at the hearing the applicant adopted his statements dated 11 October 2022, 17 October 2022 and 16 November 2022, which formed annexure A2 his statement dated 16 November 2022 (exhibit A1).

  2. In the first statement he said he is a sixth-generation grazier and farmer residing on the original family property, part of which was given as a land grant to William Hazell. The property had been passed down to the eldest son from each generation of the family and was passed to him in 2000 from his father, Harold Edward Hazell. His children wish the property to remain as a family farm.

  3. The applicant has four children and five grandchildren, having been married and divorced three times, and has, or has had, three stepchildren from his marriage to Kylie *****. After the property settlement with Kylie, he has remained very close with her eldest daughter, L***, and her youngest daughter, C***. He sees the latter at least once a fortnight and is a joint registered owner of her vehicle and vehicle insurance.

  4. He has been a member of the Oolong Rural Fire Service for 54 years, being elected as deputy captain in 2003 and captain in 2004, a position he held until 2020 when he stepped down to become senior deputy captain. He has been on many deployments to bushfires under s 44 situations to all parts of New South Wales and Victoria, once as deputy group leader with 20 RFS members, and as crew leader for all the other occurrences. Those deployments entail absences for up to 5 consecutive days.

  5. He has taken part in numerous strike teams from the Southern Tablelands zone, travelling up to two or three hours in a convoy of tankers. Most notable were the Canberra fires, which lasted 12 days or nights. The most recent strike team he was involved in was in 2018 to the Wombeyan Caves fires for three consecutive days and one night, followed by the Green Wattle fires in 2019 – 2024, three consecutive days and two nights, changing over with other crews. The Cowra Road fire was also around that time in Bungonia Gorge, which he attended for one night. All members who attended those incidents, including himself, received a certificate from the Commissioner, as well as a cap for their volunteer service. There had been many other local fires and motor vehicle accidents that he had attended with the brigade, either as a captain or crew leader or as senior deputy captain.

  6. The Oolong brigade is situated on the Hume Highway and is first responder to all motor vehicle accidents, including truck and car fires, grass fires and bushfires within the brigade area. Some incidents involve fatalities, and the brigade assists the police, fire/rescue and ambulance, including by finding suitable landing sites for helicopters. They have had two fatal incidents involving a lifetime friend in a tragic house fire and another involving three brigade members in an underground tank. He coordinated with other brigade members to fundraise for both families and organized a group of members to assist with setting up marquees and car parking on those members’ properties at their wakes.

  7. He has been an active member of the Gunning Rodeo Committee, Gunning Agricultural Show Committee, Gunning Public School P&C and a committee member of the newly reformed Gunning Roos Rugby League Football Club. Since its re-formation in 2015, apart from being a committee member, he has also held the positions of timekeeper, league safe representative, bar manager, groundskeeper and whatever role that had been asked of him. Because of his ongoing commitment to the football club, this year the club had appointed him as patron, an honour that he regards quite highly.

  8. He gives his time as a community member to all fundraisers, whether by selling raffle tickets or donating firewood to elderly and less fortunate people in the community.

  9. The property settlement with his ex-wife Kylie was “quite toxic”. He did not reside at his house after learning that she was having an affair, and it was discovered that she frequently called the police on several occasions when he was not at the house, informing them that he was harassing her. On one occasion he was spoken to by Constable Daniel Wise (with his daughter S**** K****present), who advised that Kylie was having an affair with “person of interest” and it would be better if he did not have contact with either of them. His solicitor agreed and he remained away from the home, but was more concerned for the safety of his youngest stepdaughter, C****, who moved out shortly afterwards to live with her boyfriend’s parents after Kylie’s (her mother’s) new boyfriend had moved into the home.

  10. He vehemently disputes that C**** was never terrified to be around him at any time. They had also had a great relationship and he would always take her to any extracurricular or sporting events, often being joined by C****’s father and stepmother, who are both police officers. They were very good friends and they always thanked him for being a great “stand in” father and carer.

  11. His farming land extends over 649 ha, along with an additional 91 ha that he leases from his daughter and son-in-law, as he runs 200 head of sheep on their land. Within that land area there is a range of vermin including kangaroos, rabbits, foxes, pigs, goats, feral cats and feral dogs. Those animals are detrimental to his land by destroying fences and injuring and eating livestock intended for primary production – which is his livelihood. In the time he has been without a firearms licence he has seen a dramatic increase in vermin and has observed the devastating impact they have on his livestock and land. Not being able to eradicate the vermin on his property himself has caused him heartache and income loss. He does not believe that he is in any way a threat to the community, and as stated earlier gives much time to helping in any way he can to achieve his standing in the wider community.

  12. In his further statement dated 17 October 2022, the applicant stated that he had no dealings with the courts until 2008, at which stage he was in his late 50s. In 2008 he was convicted of a common assault against Kylie. He pleaded guilty early on and is remorseful to this day. The court dismissed the charge and did not record a conviction. At that time he was having some difficulties with his marriage to Kylie. They separated in 2019 and he has not seen her since. She has moved out of town.

  13. On the date of that incident, police investigated his gun safe, which was locked. He was later charged with not storing his firearms correctly and keeping unregistered firearms. He has reflected on this at length and is deeply remorseful. He has paid his fines and has been without his firearms licence now for 14 years. The finding that one of the firearms was loaded was a complete shock to him. He never saw the loaded firearm, but agreed to accept the allegation, and still does not dispute it. He also accepted that unregistered firearms were being stored there. That was wrong and he has paid a steep penalty as a result, which was entirely appropriate. There is no way he would ever let that happen again.

  14. The safe was locked and the key was hidden and out of reach. It was located on a shelf hook that was behind a cupboard. You had to use a step ladder to access it. No-one else knew where the key was and he disagrees with the suggestion that it was accessible by others. No-one knew how to access it, especially the children.

  15. On 19 June 2021 he was convicted of a mid-range PCA. He stupidly drove the car after being at the Gunning Hotel, with no excuse. He drove home because he had to put the sheep in the shed for shearing the next day. He received a s 10 for that offence as well, and did not receive a disqualification.

  16. As regards event number E35898729, 16 November 2008, he recalls that was an argument between Kylie and Sarah H****. He had been there with Wayne ****. He does not remember much more. He did not get in any trouble with police, and the police did not allege that he was engaging in any wrongdoing.

  17. As to event E38297260, 16 October 2009, he cannot recall the exact incident but does remember that they were going through their breakup and were arguing. Kylie locked him out of the house. The police determined that there was “no damage to property and no person was assaulted”.

  18. Report E68831412, 17 October 2018, does not record an incident and is simply a note entry. For completeness, he recalls that at that time he was going through the property settlement with Kylie. He was advised by Senior Constable Daniel Wise at Gunning police, and also by Morris Owen at Johnson & Sendall, to stay away from Kylie at the time when her new partner, Danny **** was coming over to the house. Danny was well known to police and he would come and stay at the house with Kylie. The applicant made arrangements to leave at that time and never called police to improve his position in family law proceedings.

  19. At the time of event E68736606, 24 – 25 October 2018, he moved out of the house to live away from Kylie. He was advised by Constable Wise at Gunning police station that he could enter his property if Kylie was living in it, but if there was any trouble, to call him and he would attend to assist. On that occasion he attended at his house to obtain his tax paperwork and at that time believed Kylie was out of the house. He could not get into the house and it turned out that she was in fact there. She called the police for no reason. There was no argument and he absolutely did not terrorize her daughter. He loved her and had raised her for many years.

  20. Police had no issue with him going to the house so long as no offences were committed. The report says the police accepted that he had done nothing more than access his own house and that the victim went into a tirade about police. That was consistent with her behaviour through the separation, where she was making unfounded complaints to police. Police concluded that he had “done nothing wrong this time or the previous time and that Police will only take action if a relevant offence or genuine fears have been detected”.

  21. Crucially, the report says that parties both actively engaged in “lawyer wars” and that police believed her fears were “currently motivated by the property dispute and not based on genuine recent altercations”.

  22. At the time of event E71753939, 19 April 2019, he was at Desirae ****’s house in Gunning. She is a friend of his who contacted him because she was very upset with her ex-partner Doug ****, from whom she had been separated for three years. They had two children. Doug had attended at the Gunning house that afternoon to collect two young children of their relationship and Desirae became very upset and called on the applicant to obtain his support. He was merely present during the argument and was not involved. He did nothing wrong and it was between them – he was just there.

  23. He is now living alone on his sheep and cattle property. He is over 70 years old. Kylie no longer lives with him and he has not seen her since 2019. His drinking is very limited, about 6 standard drinks a week. He never drinks at home. He has been focusing on his community work with the bushfire brigade, the Rugby League football club and the show society.

  24. In his third statement dated 16 November 2022, the applicant stated that he had completed the safety course on 6 March 2022. The course specifically covered safe storage and safe handling of firearms. He has reflected on the offence of failing to safely store firearms and possessing unregistered firearms from back in 2008. That was out of character and he is deeply remorseful. He was particularly shocked that one of the firearms was loaded, which was totally out of character.

  25. He has made detailed arrangements for the safe storage of firearms should his licence be reissued, including that he reinstalls an appropriate steel firearms safe that will be inspected by police following installation. The safe is a steel safe and weighs at least 150 kg and will be bolted to the wall and floor. The locks are an approved solid metal type. The ammunition would be stored in an approved locked container separately according to the rules. They would always be locked away properly according to the rules. He had paid a significant price for not storing firearms correctly in the past and had reflected on it. He would not let it happen again.

  26. In oral evidence at the hearing the applicant reiterated those points and explained that he works on the property some 40 or 50 hours a week, sometimes more, and seven days a week. He consumes very little alcohol, only when friends come over or when he is meeting people at the pub. If he is able to obtain a lift home he will drink five or six beers a week. He has had no problems with alcohol since the PCA, and specifically no fights with people.

  27. He needs a firearms licence for dealing with vermin and ferals, such as pigs and foxes. He is in a baiting program, but as he has no licence he can have to wait for a veterinarian or somebody with a licence to help him, which happens 10 or 15 times a year. Vermin are currently out of control.

  28. He was very remorseful about the 2008 offences of assault and having unregistered guns. He was shocked to find that one of his firearms in the safe was loaded, which had never happened before or since. He had recently undertaken a firearms course and would install a safe, which he has, by bolting it to the floor.

  29. He was separated from his ex-wife Kylie in 2019 and had last seen her at the property settlement. He did not know where she is now and had no need to contact her. He does have a relationship with his stepdaughters. He is currently involved with the Rural Fire Service, fundraising, raffles, and firewood drives. He is now a patron of the Rugby League Football club and of some other community organizations. Unlike the situation in 2008, he is now totally settled.

  30. Cross-examined by Ms Chenhall on behalf of the Commissioner, he agreed that he had known that firearms had to be registered and could not be stored when loaded. He did not know why that had happened. The issue about the keys should have been disputed. The keys had been in the letter rack and would not have been easily found. The police did not find the keys, he had given the keys to the police, but he agreed that the report stated that they had found the safe and the keys.

  1. Referring to his letter to the firearms registry of 18 August 2009, Ms Chenhall suggested that he had reapplied for a licence soon after the revocation decision, which she said suggested that he did not think the contravention was serious. By saying that it was an oversight, and that he did not know why he had stored a loaded rifle, did that not mean that such an incident could recur? He replied in the negative and explained that it would have been necessary to obtain the keys before unlocking the safe, and they had not been stored for ease of use.

  2. He agreed that the unregistered firearms should have been handed in and there had been an earlier amnesty. He had written “The unregistered firearms were deemed by me to be safer in my gun safe other than the owners having them under beds or in sheds without being in a safe”. But it was 14 years ago and he had learned his lesson. He had not informed police about the identities of the owners at that stage.

  3. The witness denied that he had suffered from alcohol issues in the past and although there had been some incidents involving the police, they had taken place in a private home, except the 2008 incident. Asked about event report E36675285, 5 September 2008, and E38297260, 16 October 2009, he said they had been having some marital difficulties even before 2008. The latter incident had involved alcohol, but both parties had been drinking at the Telegraph Hotel in Gunning. He agreed he had been violent towards his ex-wife. He did not recall the altercation described in report E35898729, 16 November 2008, in the course of which all participants had been injured, but it was not because he had been drunk.

  4. As regards event E 38297260 (supra), there was no evidence that he had been there at the time. He was possibly intoxicated at the time and although his ex-wife had locked him out of the house, on the ground that he was drunk, she had been affected also. He did not recall the 2009 incident now as it had been long ago, although he did recall the 2008 incident. He denied that he became involved in altercations when intoxicated.

  5. Asked about his claim in his 11 October 2022 statement that he represented no threat to the community, he acknowledged that he had been charged with a PCA and said it had been a terrible mistake that had occurred once in 50 years, although he had passed many random breath tests. He had known he would be over the limit but had tried to get a driver because a neighbour had telephoned him to say that his sheep were on the highway. He had waited for a courtesy bus and for his daughter.

  6. He acknowledged that in his 17 October 2022 affidavit he had said he had to drive because he needed to put his sheep into the shed in preparation for shearing, but a neighbour had phoned to tell him that his sheep were on the road. It was not an emergency and he was not trying to justify his conduct. He had been driving without knowing how much he had consumed.

  7. He was asked how he had managed on his property when he had not held a firearms licence since 2008 and replied that he had managed with difficulty. He had obtained help from others, but occasionally it was difficult to get anyone and he had to wait for help. There was no re-examination.

Mr Ian Blackburn

  1. This witness adopted his statement dated 17 October 2022 (exhibit A2) in which he stated that he had known the applicant for nine years, having first met him when he moved to Gunning. He later joined the New South Wales Rural Fire Service at the Oolong Fire Brigade. Until recently Terry had been the brigade captain, a position he had held for 17 years, and had served as a volunteer in the brigade for over 50 years. In his role as captain, he had organized countless charity auctions to raise funds for people less fortunate within their extended community at Gunning.

  2. When Mr Blackburn had been president of the Gunning Roos Rugby League Football Club, Terry had worked as a volunteer and community member, and continues to be a major sponsor of the club. Giving his time selflessly to the betterment of the club, he was awarded Clubman of the Year for his services in 2017.

  3. He is a very gentle, generous, compassionate person, the first to step up to assist people less fortunate or in any bad circumstances in their community. It is the very core of his character to help people in need. The Terry Hazell he knows had always put the community first. About four years ago there had been a house fire in Gunning, where one of the owners was killed and the house was burnt to the ground, destroying all possessions. Terry organized a $2000 donation directly to the family from the fire brigade funds the next day. He also coordinated a firewood drive that was auctioned off and raised $9000 cash for the family through the Fire Brigade. He quietly goes around town helping the less fortunate and Mr Blackburn had seen him do that for two elderly widowed ladies who were on the old age pension and live alone. Terry cuts, splits and delivers firewood from his property for them free of charge, with no fuss, no bother and has done so for years. He had seen him offer money from his own funds when he thinks people are suffering hardship.

  4. From his observation Terry’s marital breakup was very stressful and troubling. His ex-wife Kylie was not well liked or respected in the community, and since the divorce she has left the region and has not been missed. To his knowledge she has not kept in contact with anyone from the town. In particular he feels that this has to be really taken into careful consideration as regards what might have been said to police against him, as she is not a very credible or trustworthy person and would blatantly lie to propagate an argument against someone for her own benefit.

  5. Terry is also a loving father who has raised four children and has five grandchildren. One of his daughters lives on an adjoining property with her husband and two children. Mr Blackburn had seen his loving interactions as a father and father-in-law, grandfather and in a close family unit on countless occasions. It is to his credit that he maintains a very close relationship with all his family. He also has a very good and close relationship with his first wife Ali Hazell. They maintain a friendship and meet on a weekly basis with other friends. It is great to see how relationships can come in many forms and are a good example to his grandchildren. He is a sixth-generation farmer who owns and runs a very successful farm of sheep and cattle on approximately 750 ha. He needs his gun licence as a primary producer to manage vermin control on his property.

  6. He believes the applicant to be of very good character, an absolute asset to the town and one of the most generous people he has ever met.

  7. In oral evidence at the hearing Mr Blackburn reiterated those points and explained that he has lived at Gunning for 10 years and is a licensed stock and station agent, auctioneer and real estate agent. He met the applicant in 2013 as fire captain. The applicant has served the RFS for over 50 years, 17 of them as captain. He was very competent and safe. The brigade could be required to attend at truck fires, or accidents on the freeway and also helps with evacuations, grass fires and bushfires, of which the 2019 fires were especially dangerous. The applicant was captain and was in control, and was responsible for everyone’s safety.

  8. He had never seen the applicant in a conflict, quite the opposite. He is respected in the community and raised $2000 for a family that lost their father and house in a fire, also organizing a firewood auction that raised $9000. He did all the organizing, making use of his organizational skills as fire captain. Mr Blackburn was aware that his licence had been revoked because of a domestic violence incident with his ex-wife, who was very toxic and the relationship was toxic itself. After the divorce three or four years ago she had not been seen and they had never heard from her again. Now that she has left, Terry is in a much happier place.

  9. In cross-examination the witness said Kylie had not been credible or trustworthy, but he knew about the assault and that Terry had struck her. He was not aware of the specific details as he had not been in Gunning at the time, but he did know that Terry had been hit on the head with a bat or other solid instrument and had been injured. Both parties had been drinking when an argument arose at about 11:00 pm. The incident did not change his opinion of the applicant and he had never seen him violent, nor could he imagine him being violent. He also knows that the applicant takes safety seriously. He knew that his firearms had been safely secured and that one had not been registered, which was owned by a family member. He knew that one had been stored loaded. Although that was a serious breach, especially when there were children in the house, he felt safe under his direction and would still say that the applicant treats safety as paramount, even though he had suffered a lapse of judgment.

  10. He had been unaware of the total number of unregistered firearms, though he had thought it was one or two. He had said they belonged to other farmers and the witness knew the applicant had declined to tell police the names of the owners, but that would be because he would have wanted not to make trouble for others. He has always seen him as a serious, community-minded man.

  11. As regards alcohol, he runs the property well and his alcohol use has not affected his work or his links with the community. The PCA was a one-off lapse. Mr Blackburn only knew him as a social drinker, as in a small town people catch up at the pub. He had paid the price for his PCA, and although he displayed poor judgment he is a good community member. The crashes to which the RFS is called on the freeway usually result from fatigue or mechanical failure, or truck fires, not from alcohol.

  12. Mr Blackburn was not aware of the altercations on 16 November 2008 (E35898729, exhibit R1, p 19) or 16 October 2009 (E38297260, id., 22) as he had not been living in the town at the time. He had never seen the applicant being violent and knew him as a good community member, and a very generous, loving family man. There was no re-examination.

  13. The applicant also tendered three other recent character references (part exhibit A2) the contents of which are outlined later in these reasons.

Respondent’s submissions

  1. The respondent relied on written submissions filed on 11 November 2022 (exhibit R3) in which, after outlining the background to the case and the applicable law, relied on the following grounds:

  1. whether the applicant is a fit and proper person to hold a licence (s 11(3)(a));

  2. whether the applicant is capable of meeting the storage and safety requirements (s 11(3)(c));

  3. whether the applicant’s domestic circumstances would impair his ability to maintain continuous and responsible control over firearms (s 11(4)(a));

  4. whether it would be contrary to the public interest for the applicant to be issued with a licence (s 11(7)).

Domestic incidents

  1. The respondent pointed out that the applicant had come to police attention on numerous occasions for domestic incidents, both with his ex-wife and others, which revealed a lack of self-control when alcohol is involved, and character traits that would make the general public concerned about his being authorized to possess firearms.

  2. The 4 August 2008 incident, which resulted in the applicant’s conviction of common assault was a result of striking his then wife in the face with his closed fist. She also said he had held his arm across her throat, causing her to have difficulty breathing and to fear for her safety. As a result of that incident, he was served with an interim AVO and his firearms licence was suspended. A final ADVO for 12 months was made on conviction for the common assault.

  3. A further incident occurred on 16 November 2008 when the applicant, his ex-wife and two other persons were involved in an affray outside the Gunning Hotel. Police stated that all parties, including the applicant, sustained cuts and bruises to their faces, but all refused to provide particulars to police. A further domestic violence event on 16 October 2009 involved the applicant and his ex-wife following a report by her daughter that her mother was outside the police station and the applicant was abusing and threatening to assault her. The couple had been at the Telegraph Hotel on that evening, and at some stage an argument and physical altercation occurred between him and an unknown man. Kylie managed to persuade him to leave the hotel, but the argument continued and once back at their residence, the ex-wife locked the applicant outside, and he continued to berate her.

Driving offences

  1. The applicant’s most recent conviction was for a mid-range PCA on 19 June 2021 at Gunning, again a matter in which the applicant had consumed alcohol and decided to drive. An analysis returned a reading of 0.114. He admitted drinking six beers, the first at 6:00 pm and the last at 8:10 pm.

Firearms and safe storage offences

  1. The applicant had been charged with possession of four unregistered firearms and not keeping a firearm safely, when police because of the domestic incident on 4 September 2008 seized the applicant’s firearms. One of the firearms was loaded, and the keys to the safe were fully accessible. The applicant declined to give particulars about who the guns belonged to, other than to say that they belonged to “other farmers”.

  2. That conduct reflected poorly on him and his refusal to provide the names of the persons who supplied the unregistered firearms was conduct that may undermine the national firearms registration scheme that is an important object of the Act. At Yass Local Court on 2 December 2008, he was found guilty of the offences and fined a total of $1200.00. It was concerning that the applicant had been licensed for a substantial period of time, and yet he had stored a firearm fully loaded with the keys to the gun safe accessible to others in the home, including children.

The public interest

  1. In considering whether it is in the public interest for the applicant to hold a licence, the public’s right to safety must outweigh an individual’s interest in possessing and using a firearm. In the context of the Act, the tribunal must be satisfied that there is virtually no risk.

  2. It could not be said that the applicant has “sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted” with firearms. Nor could it be said that there is “virtually no risk” to public safety if the application were to be granted. The applicant’s possession of four unregistered firearms, and not keeping the firearms safely, combined with his domestic circumstances and way of living, all demonstrate that he is not a fit and proper person to hold a licence.

  3. The above information confirms that there is reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms, as a result of his way of living. Nor could the tribunal be satisfied that he could be trusted to have possession of firearms without danger to public safety, including his own safety. It would therefore be contrary to the public interest for him to possess a category ABC firearms licence. The correct and preferable decision was therefore to affirm the decision of the Commissioner to revoke (scil. refuse) the firearms licence.

  4. In oral submissions at the hearing, the respondent reiterated those points and noted that in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], the tribunal had stated that:

“In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”.

  1. Thus, although the 2008 offences were now historical, there was a real risk at that time which was still relevant today. Therefore the risk could not be classified as minimal or fanciful. Storing a loaded gun was a significant contravention, especially as there were children in the house. The offence was aggravated in that it had occurred at a time of domestic turmoil. Although the PCA fine and conviction had been replaced with a s 10 dismissal subject to an Interlock condition, the firearms fine had stood.

  2. In his defence in relation to the four unregistered firearms, his evidence as to why he had them raises concerns because he decided of his own motion that it was safer to keep them in his safe. He took it on himself not to comply with the regulations. His attitude had been to downplay his role in the events of 2008 – 2009 and he recollected some aspects of it but not others. In relation to the event of 16 October 2009 (E 38297260), alcohol had played a role, such that the police had to intervene. He pointed out that no offence had been committed, but there had been three telephone calls by a child to police, who made two visits on that day looking for the applicant (exhibit R1, p 23).

  3. Although there has been a time lapse and Kylie is no longer on the scene, his PCA contravention in 2021 also involved alcohol. He did not seek to excuse his conduct, but said that he needed to move the sheep into the shed. But his explanation shows that he had not complied with the law. His evidence about receiving a telephone call from a neighbour that his sheep were on the road was a recent invention. He had known he was over the limit but nevertheless chose to drive, which showed that he presented a real risk in relation to public safety laws.

  4. His evidence about the loaded firearm in the safe varied. He now said that he did not know why it had happened but his not knowing was serious in itself. In his 17 October 2022 statement he said that the revelation had come as a complete shock to him. But that could be because he had not left it there or for some other reason. He stated that there was no way such an incident would recur, but it was serious and should not have happened in the first place. He said it was out of character, but keeping the four unregistered firearms was a choice, not an off-the-cuff decision.

  5. In his character evidence Mr Blackburn was not fully aware of the particulars of the domestic violence incident, except that the applicant himself had been injured. He had said that hearing more of the details of the assault did not change his opinion of the applicant, which was rather surprising. He was also unaware of the number of unregistered firearms the applicant had kept. It was commendable that the applicant performed RFS and community work, but this case was about public safety. The other character references merited little weight as the referees had no knowledge of the history of the matter or of the purpose of the application.

  6. As regards his need for firearms licence as a primary producer, it was significant that he had managed for 14 years without a licence, by arranging for other persons to help him. In any event his need for firearms did not override the need for public safety.

Consideration

  1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner’s decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

  2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner’s refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

  1. Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant’s intemperate habits or being of unsound mind.

  2. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.

Fit and proper person

  1. The first ground on which the respondent’s case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides that a licence must not be issued unless “the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”.

  2. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies:

The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. “Fit” or “idoneus” with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.

  1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

  1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC(GD) [2011] NSWADTAP 65, [37]; Smith, [30].

  2. In the context of the Firearms Act, fitness and propriety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].

Domestic incidents

  1. The main incident on which the respondent relies occurred on 4 September 2008 and resulted in the applicant’s being found guilty of common assault and receiving a s 10 12-month bond. An interim AVO was issued and after the finding of guilt a final ADVO for 12 months was made and his firearms licence was suspended.

  2. On the evening in question both parties had been drinking for some six hours at the Gunning Hotel. When they arrived home, the fact sheet (part exhibit R2) records that they became involved in a verbal argument that escalated to a physical altercation that resulted in the applicant punching Kylie in the left eye with his closed fist. He then grabbed her around the throat, causing her to struggle for breath. She told her 13 year-old daughter to telephone the police and when they arrived she told them that “He tried to strangle me”. Her statement dated 4 September (part exhibit R2) adds that he said “You’re a bitch in heat, you’re a slut”.

  3. Whether that was a reference to Kylie’s allegedly having an affair is not clear, but in relation to a later incident on 17 October 2018 the applicant’s evidence was that he was told by Senior Constable Daniel Wise at Gunning police (in the presence of his daughter Sarah), and by his solicitor, to stay away from Kylie at any time when her new partner Danny ***** was coming to the house as he was well known to police as “person of interest” (which in this context commonly means a known criminal)..

  4. Be that as it may, it was a serious assault and the applicant made no attempt to excuse or diminish it, except to say that they had both been drinking and had been experiencing marital problems. He expressed deep remorse over the incident. Mr Blackburn in his evidence said that he understood (as he was not present at the time) that the applicant had been struck over the head with a bat or other solid wooden object, leaving scars that Mr Blackburn had seen.

  5. Next, the respondent relies on an incident on 16 November 2008 when the applicant, Kylie and two other persons were involved in a fray outside the Gunning Hotel. According to report E3698729, when police arrived on the scene they were told that the four persons had started to fight with each other physically while in the hotel, and then the scuffle moved outside. All parties including the applicant sustained cuts and bruises to their faces and all refused to provide particulars to police.

  6. Event report E35898729 records that there was no CCTV footage in the hotel where the fight started and police had insufficient evidence to charge anyone. The incident was noted for the record only. The applicant states that he was there with Wayne **** and that the altercation arose out of an argument between Kylie and Sarah ****. Apart from that he could not remember much more and simply notes that police had not alleged that he was involved in any wrongdoing. That is probably a slight overstatement, as the police report simply said that no charges were laid because the evidence was insufficient.

  7. The third main incident relied on by the respondent occurred on 16 October 2009 (event E 38297260), which involved the applicant and his ex-wife. The police report states that the ex-wife’s child called police, stating that her mother was outside the police station and that the applicant was abusing her and threatening to assault her. The applicant and his ex-wife had been at the Telegraph Hotel that evening and at some stage during the evening an argument and physical altercation took place between the applicant and an unknown man over an accusation that he had slept with Kylie (exhibit R1, p 22). While they were returning home a verbal argument took place, and when they arrived, Kylie locked the applicant out of the house because of his behaviour, and the latter continued to verbally abuse her from outside the house police were called by one of Kylie’s daughters and on arrival spoke with Kylie, “who appeared slightly affected by alcohol. All her children appeared fine and in good health” (ibid.).

  8. On two occasions police searched the surrounding property, seeking to speak with the applicant, but were unable to do so as night had fallen. Later that evening police were called back to the location because the applicant was banging on the doors and windows, asking to be let in and to be given a blanket. It appeared that he had fallen into the dam as he was dripping wet. He managed to open a window, where he was given a jacket by Kylie, and also took a blanket from an outside birdcage to keep warm.

  9. The report concludes, “It was established again that no offences had occurred and Police left the location. Police received no more complaints from Kylie. There was no damage to any property and no person was assaulted” (id., 23). It therefore appears to have been rowdy and disorderly conduct fuelled by alcohol which was triggered by an accusation that Kylie had been unfaithful.

  10. A disturbance on 25 October 2018 related to the applicant seeking to gain access to the house to obtain some documents for tax purposes. He had no key but there was an arrangement with Kylie that she would leave a key on top of the door, but on this occasion had not done so. She telephoned police and told them he was going onto the property without permission and “terrorizing” her daughter. She also stated that he had trespassed on the property the previous night as he left an RFS vehicle at the house.

  11. The report noted that the two parties were currently going through a separation and were battling civilly over property ownership. There were no final orders in place as to who had the right to live in the house, but because of the separation the applicant lived at another address (id., 30).

  12. Police informed Kylie that if the applicant wanted to go to his own house, police would not have an issue with his doing so, as long as he did not commit any offence. “Judging by the POI’s actions he did nothing more than to access his own house and dropped off a vehicle….. The victim went on a tirade about Police inaction and how she lives in daily terror, mentioning previous incidents over the past 10 years of no current relevance…. Police advised her that he has done nothing wrong this time or the previous time and that Police will only take action if a relevant offence or genuine fears has been detected” (id., 31 – 32).

  13. Police reported the victim as saying that she was terrified of the applicant and scared for her daughter. They doubted the genuineness of her complaint, however: “Police believe her fears are currently motivated by the property dispute and not based on genuine recent altercations” (id., 32).

  14. The applicant said that the property settlement was “quite toxic”. He had not resided at his house after discovering that Kylie was having an affair, and it was discovered that she frequently called police on several occasions when he was not at the home, telling them that he was harassing her. On one occasion he was advised by S/C Wise that Kylie’s paramour was “a person of interest” and he would be well advised not to have contact with either of them, a suggestion which his solicitor supported (exhibit A1, part annexure A).

Driving record

  1. This concerns an incident on 19 June 2021 when the applicant was driving his Isuzu utility and was subjected to a random roadside breath test. He told police that he had consumed “about 3” beers. He returned a positive result and was arrested. The breath analysis performed at Yass police station showed a reading of 0.114. At that time he admitted to drinking six schooners between 6:00 pm and 8:10 pm.

  2. At the hearing he explained the discrepancy between 3 and 6 as arising because he had been guessing. He was shocked at being stopped and knew he was over the limit, but he did not find out that he had consumed six beers until later, but admitted that he had been driving without knowing how much he had consumed. He knew he was about to be tested, so he had no reason to lie. He said it had been a “terrible mistake”, the only one of that kind in 50 years, although he had undergone many RBTs successfully. He had tried to arrange for a driver because he had been telephoned by a neighbour who told him that his sheep were on the highway. He had waited for a courtesy bus and for his daughter.

  3. He had said in his statement of 17 October 2022 that he had no excuse for the contravention but had to get the sheep into the shed in preparation for shearing the following day. The respondent pointed to the discrepancy between the two accounts and concluded that the assertion about the telephone call from a neighbour was a recent invention. That is not necessarily so, however, as the two versions are not inconsistent. He had to get the sheep into the shed, but it is possible also that he was telephoned by a neighbour about his sheep straying onto the road.

  4. It was certainly a serious offence, and the respondent contended that it showed he would not comply with the law. He knew he was over the limit but chose to drive and thus presented a real risk through his disregard of public safety laws. Yass District Court dismissed the charge under s 10.

  5. The respondent’s written submissions state that this violation was his “most recent conviction” (exhibit R3, para 58), but there is no evidence before the tribunal of any other traffic contraventions (the PCA being treated as a criminal offence). There is no traffic record document as such in the s 58 documents, but there is a “Criminal Infringement Notice History”, which presumably includes traffic matters (see exhibit R1, p 7), and which states “No criminal infringement notice records found”. The evidence thus suggests that until the contravention in question, and since then, the applicant has accrued no contraventions. In those circumstances the applicant’s driving history does not weigh heavily against his application.

Firearms and safe storage

  1. The applicant was found guilty of being in possession of four unregistered firearms and not keeping a firearm safely. Because of the domestic incident of 4 September 2008, police seized his firearms, and in the process of so doing found that one of them was loaded. Police pointed out that four children had been living at the premises and stated that the keys to the safe were located on a hook in the kitchen area that was very accessible to the four children or any other person who entered the property (exhibit R1, p 16). The applicant refused to reveal the source of the unregistered firearms. At Yass Local Court on 2 December 2008 the applicant was found guilty of the offences and fined a total of $1200. The respondent submitted that the applicant had been licensed for a substantial period of time, and yet he had stored a firearm fully loaded and the keys to the gun safe accessible to others in the home, including children.

  2. The applicant said he had reflected on the episode at length and was deeply remorseful. He had paid his fines and had been without his licence for 14 years. The finding that one of the firearms was loaded came as a complete shock to him. He never saw the loaded firearm, but agreed to accept the allegation and still does not dispute that finding, or that there were unregistered firearms stored in the safe. That also was wrong and he had paid a steep penalty. He had pleaded guilty at an early stage of the proceedings.

  3. At the same time, he disputed that the keys to the safe were on a hook in the kitchen and easily accessible to children or others. He had intended that the point be disputed at the hearing, but that had not been done. At the time the safe was locked and the key was hidden and out of reach. It was located on a shelf hook which was behind a cupboard and could only be accessed by using a step ladder. No-one else knew where the key was and he disagreed with the suggestion that it was accessible by others. No-one knew how to access it, especially the children. The police had not found the keys or located the safe. He had given them the keys himself and shown them the safe.

Character evidence

Mr Ian Blackburn

  1. Mr Ian Blackburn, a stock and station agent, auctioneer and real estate agent has known the applicant at Gunning for 10 years and gave quite detailed supportive evidence about his character and record. He pointed out that the applicant had served as a Rural Fire Service volunteer in the Oolong Fire Brigade for 50 years, 17 of them as captain. In his roles as team leader, captain and senior deputy captain, he was responsible for the lives of those under him, including in highly dangerous situations such as the 2019 bushfires. Mr Blackburn had complete confidence in his judgment and felt safe working under his direction.

  2. The applicant is active in a variety of other community organizations as a member, president and patron, including the Rugby League Football Club, and has organized countless charity auctions to raise funds for the less fortunate people within the community. Approximately four years ago, there was a house fire in Gunning in which one of the owners was killed. The house was burnt to the ground and the family lost all their possessions. Terry organized a $2000 donation directly to the family from brigade funds the next day and coordinated a firewood drive that raised $9000 cash for the family through the brigade. He also quietly goes around town helping the less fortunate, such as by cutting and delivering firewood at no charge.

  3. He was aware of most of the circumstances of the assault charge, adding that both parties had been drinking at the time and both sustained injuries as a result of the altercation. Mr Hazell’s marriage breakup had been highly stressful. He was in a “toxic relation” with his ex-wife, who was herself a “toxic” person. After the divorce some three or four years ago, she had left town and had not been seen or heard of since. She had not been missed. Now that Kylie is gone, the applicant is “in a much happier place”.

  4. Kylie was not a very credible or trustworthy person and would blatantly lie to propagate an argument against someone for her own benefit. That had to be taken into careful consideration as regards what might have been said to police about Tony. He himself had never seen the applicant violent, and could not imagine it. He is sixth-generation farmer who runs a 750 ha property and is a real asset to the town. He has raised four children, has five grandchildren and maintains close relations with his family.

  5. He had not himself had any dealings with the applicant in relation to firearms, but knew him as a man who takes safety seriously. He was aware of the firearms offences and agreed that the applicant should not have done those things, but felt that he had a lapse of judgment and that did not affect his view that he was safe with the applicant. He sees him as a serious, community-minded person.

  6. He knows the applicant as only a social drinker, and it does not affect his good running of his property, his work or his links with the community. The PCA was a one-off lapse for which he had paid the price.

The references

  1. The applicant also adduced four references from residents of the area. Mr Andrew Swift, 62, is a carpenter and current captain of the Oolong Bush Fire Brigade. He has known the applicant for 18 years and in that time has come to know him personally and professionally. He was brigade captain for 17 years and is still a very valued member, with over 50 years of service to the local brigade, where he always responds to local bushfires and to motor vehicle accidents on the highway in their area. He has also volunteered to go away interstate if required. He is a very motivated and resolute member of the brigade and has a very professional approach to whatever task is at hand.

  1. He is a valued member of the community and over the years has assisted people and families in the local area who are less fortunate or who have had personal tragedy due to illness or death, through fundraising activities and support. He is a supporter of local sporting teams and assists young people in the area. Mr Swift was “incredibly surprised” to learn of the charge, as the nature of the offence was inconsistent with his professional and personal reputation. The applicant had discussed the matter with him at length and explained the offence and what occurred. He had expressed genuine regret and significant embarrassment over the matter.

  2. Philip and Karen Chapple in their letter of 18 July 2022 state that they have known the applicant for over 60 years and he has been a close friend for many years. He is a responsible part of the community and they know him to be honest, reliable and hard-working for many causes. For many years he was the Bush Fire Brigade captain and still holds the position of deputy.

  3. Mr Craig Southwell JP is the owner-operator of Bailey’s Garage and has known Terry for approximately 60 years. He is a well-known local grazier. He writes in 18 August 2022 that Terry has been and continues to be an active member of the community. He has been involved with many local sporting and community groups throughout his life.

  4. He is an active community member and sponsor of the Gunning Roos and Rooettes Rugby Football Club, earning the title of Clubman of the Year in 2020. He has been a committee member of the Gunning Show Society and Gunning Rodeo Society. He has been a member of the Oolong Fire Brigade for over 53 years and was captain for 17 consecutive years, only ending in 2021. He has also previously held other positions such as senior deputy captain and training officer. He is an approachable and compassionate person and would go above and beyond to help others in need. He is an integral part of the community.

  5. Mr Paul Watchorn’s letter of 14 October 2022 records that the applicant had successfully completed a New South Wales firearms safety course. That involved showing and understanding the practical safe handling of category A and B firearms and the conditions of ownership as prescribed under the firearms regulation. The course was conducted at Yass Clay Target Club on 6 March 2022. Training and instruction were delivered by Mr Watchorn.

Evaluation – fitness and propriety

  1. The applicant lost his firearms licence following the incident on 4 September 2008 in which in the course of an altercation with his then wife Kylie, he punched her in the face and placed her in a headlock. Both parties had been drinking for some six hours and both were injured in the clash. The applicant was arrested and charged, his firearms were seized and an interim AVO was issued. Following the hearing on the assault charge, a final ADVOs for 12 months was issued after a finding of guilt that led to a 12-month s10 bond.

120 The applicant pleaded guilty at an early stage and made no attempt to excuse or diminish his conduct. He expressed deep remorse over the matter. There was also the mêlée on 16 November 2008 in which the applicant, Kylie and another couple were involved in a scuffle over an argument between Kylie and Sarah ******. No charges were laid and it appears to have been a case of rowdy brawling not instigated by the applicant. Significantly, there has been no report of violent conduct on the applicant’s part since then.

  1. There was, however, disorderly conduct on 16 October 2009 after he and Kylie had been drinking, which led to police intervention. It was fuelled by alcohol and triggered by an accusation of infidelity on Kylie’s part. The police report stated that no offences had been committed, no damage having been done and no person assaulted. There have been no similar incidents since then, and since the divorce and property settlement in 2018 – 2019, Kylie has left the scene and has had no contact with anyone in Gunning.

  2. There was, though, a report by Kylie on 25 October 2018 when the applicant tried to enter the house to obtain documents he needed for tax purposes, but he had no key as he had moved out because Kylie had been engaged in an affair and, contrarily to her normal practice, she had not left a key outside to allow him entry. The police pointed out to her that he had every right to enter his own house (there being no orders in force at the time), provided he did not commit any offences. She delivered a tirade against police and detailed a list of episodes over the last 10 years that police considered irrelevant. In their report. They expressed doubts about the genuineness of her complaint and opined that it might have been a tactical move to strengthen her position on the property settlement.

  3. It was at about that time that S/C Wise advised the applicant to avoid contact with Kylie because of her involvement with Danny ****, “a person of interest”. Both Mr Blackburn and the police viewed Kylie as a difficult person whose veracity could not be assumed.

  4. The two instances of violence and the disorderly conduct on 16 October 2009 occurred at a time when the applicant was experiencing marriage difficulties that prefigured the divorce in 2018 – 2019. While that does not excuse them, it does tend to explain the absence of any serious episodes of violence before or since, especially as Mr Blackburn and others have commented that he is in a much happier and more stable situation today. Indeed, Mr Blackburn has never seen him in any violent or confrontational situation in the 10 years he has known him. As the respondent very properly conceded, the reports are “historical” material, though, the respondent also submitted, they could still have relevance today. They are not, however, incompatible with a finding that the applicant is today a fit and proper person to hold a firearms licence.

  5. The mid-range PCA offence on 19 June 2021 at Gunning is a blot on his more recent record, however. He admits that he knew he was over the limit and that he should not have been driving. He explained that he had been telephoned by a neighbour who said his sheep had strayed onto the highway. He said he had to return to the property as they needed to be moved into the shed in preparation for shearing the following day. He had attempted to obtain a ride home, but without success. While that was a significant breach of the regulations, it does not indicate a propensity to disregard traffic laws, given that there is no evidence before the tribunal that he has accumulated any other violations.

  6. The firearms offences for which he was found guilty at Yass Local Court on 2 December 2008 were more serious, however. When police attended the property on 4 September 2008 in connexion with the assault on Kylie, they inspected his gun safe and located four unregistered firearms which the applicant had apparently been holding on behalf of other farmers because he thought they would be safer in his firearms safe than under beds or in cupboards. He declined to name the other farmers, and Mr Blackburn thought he was probably trying to avoid trouble for other people, which might be understandable but was not helpful to his case.

  7. It was a serious offence, especially as one of the firearms was found to be loaded. The applicant said he had been shocked by that revelation and had no idea how it happened. The respondent submitted that this showed the applicant might do the same thing in the future if his licence were restored, but again it is an isolated incident. Whether it involved significant danger to the public depends in part on whether the police report that the keys to the safe were on a hook in the kitchen where they could be easily found was accurate.

  8. The applicant in his evidence said they were on a shelf hook behind a cupboard that could only be accessed with a step ladder, and that nobody else knew where they were. He did, however, plead guilty to the offence and prima facie his alternative explanation can only be treated as a possible surrounding circumstance. But it was an isolated incident and the applicant has had no other firearms contraventions or adverse reports since he was first licensed in 1989. He says he has learned a lesson from that episode and he has paid a substantial price for it, having been without his licence for 14 years, creating a difficult situation for a professional grazier at a time when vermin and ferals are “out of control”.

  9. The applicant adduced character evidence from Mr Blackburn and four other referees in the local area. All speak very highly of his personality as a compassionate, generous, willing and helpful asset to the community. His work with the Rural Fire Service for 54 years, 17 of them as captain, as well as terms as deputy captain and training instructor, has been outstanding. He has often confronted dangerous situations, as in the 2019 bushfires, during which he has been responsible for the safety of others. He is regarded as highly competent and safety conscious. In addition, he has gone out of his way to help those in the community who have suffered misfortune or difficult circumstances. He has expressed remorse over the common assault charge, the PCA and the firearms offences. He completed a New South Wales Firearms Safety Course at Yass Clay Target Club or 6 March 2022. He has made appropriate arrangements for a firearms safe complying with the regulations should he be granted a licence once again.

  10. The applicant is a grazier aged 71 who has four children and five grandchildren and lives alone on his 750 ha property, which he operates as a successful business raising sheep and cattle. Until 2008, when he was 56, he had never had any involvement with the justice system. He appears to have no traffic violations other than the PCA in 2021 and no firearms contraventions or adverse reports other than in 2008. He has no mental health problems and although he was at one time involved in incidents fuelled by drinking, he is now known only as a social drinker and not as having any alcohol problem. He has expressed remorse for his contraventions and there appears to be no significant risk of any recurrence. As Mr Brendan-Baker submitted, it is his fitness and propriety as at today that is the issue.

  11. On all the evidence, I am satisfied that the applicant is a fit and proper person who can be trusted to have possession of firearms without danger to public safety or the peace and that he is capable of meeting the storage and safety requirements set out in the legislation. I also find that, with the departure of Kylie from the scene, his domestic circumstances create no risk that he may not personally exercise continuous and responsible control over firearms, and I so find.

The public interest

  1. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

  2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant’s personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

  3. As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.

  4. Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66].

  5. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that “In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration”. Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

  6. The respondent submitted that the applicant had not demonstrated sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person to be entrusted with firearms. His breaches, Ms Chenhall contended at the hearing, were so serious that it would not be in the public interest for him to hold a licence.

  7. The contraventions were indeed serious, but they were also isolated events of a kind that had not occurred before over the long period in which the applicant had held a licence. His domestic arrangements since the ending of his troubled marriage to Kylie have substantially changed and he is in a much more settled and contented state of mind. He has paid a substantial penalty for his contraventions, is remorseful and has made arrangements that would help to ensure that there is no repetition. In my view there would be no real or appreciable risk to public safety were he to be reissued with a licence.

  8. There is a public interest in law-abiding farmers and graziers having access to long arms for the protection of the environment and primary industry, and in this case the applicant is confronted with a situation where vermin and ferals are “out of control” and he regularly has difficulty obtaining a veterinarian or other person who can help him with the problem.

  9. On the totality of the evidence I conclude that it would not be contrary to the public interest for the applicant to hold a licence and I so find.

Order

  1. Decision under review set aside.

  2. A category ABC firearms licence is to be issued to the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 10 March 2023

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Australian Broadcasting Tribunal v Bond [1990] HCA 33
Craig v South Australia [1995] HCA 58
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254