Heness v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 206

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Heness v Commissioner of Police, NSW Police Force [2023] NSWCATAD 206

Hearing dates:

11 May 2023

Date of orders:

02 August 2023

Decision date:

02 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1)   The respondent’s decision is set aside.

(2)   The Applicant is granted a category AB firearms licence.

Catchwords:

ADMINISTRATIVE REVIEW - firearms – threatening behaviour – AVOs – passage of time – character references - fit and proper person – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Firearms Act 1996

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1

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

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

Constantin v Commissioner of Police [2013] NSWADTAP 16

Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7

Director of Public Prosecutions v Smith (1991) 1 VR 63

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

Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70

FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88

Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127

Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31

Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159

Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Saxby v Commissioner of Police [2021] NSWCATAD 275

Sobey v Commercial and Private Agents Board [1979] 22 SASR 70

Vella v Commissioner of Police [2003] NSWADT 91

Wiltshire v Commissioner of Police [2005] NSWADT 75

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Grant Heness (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Mainstone Lawyers (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2022/00377953

Publication restriction:

None

REASONS FOR DECISION

1. On 10 April 2022, the Applicant, Grant Heness, made an application for a Category AB firearms licence under the Firearms Act 1996 (NSW) (the Act). On 19 May 2022 a delegate of the Commissioner of Police, NSW Police Force (the Respondent) refused the application on public interest grounds on the basis that police records demonstrated the Applicant had a history of threatening behaviour. On 8 June 2022 the Applicant sought an internal review of the Decision and provided submissions on 13 June 2022.

2. On 9 December 2022, the Respondent conducted an internal review and affirmed the Decision on public interest grounds on the basis of the Applicant’s demonstrated and continued disregard for the safety and wellbeing of others. The Applicant sought administrative review of that decision in this Tribunal on 15 December 2022. The matter proceeded to hearing on 11 May 2023 at which the Applicant gave evidence and was cross examined, and both parties provided the Tribunal with oral submissions.

3. The Applicant provided the Tribunal with the following:

1. Written submissions dated 26 April 2023;

2. Statement of Grant Heness dated 8 March 2023;

3. Character references from: Janene Maree Young, the Applicant’s ex-wife, dated 7 March 2023; Scott Grigg of Grigg Agricultural Services, dated 22 March 2023; Matthew Holt, Councillor elect at Leeton Shire Council (undated); Murray Stivens, dated 14 March 2023; and Bill Arnold, Managing Director of Hotondo Homes, dated 18 March 2023.

4. The Respondent provided the Tribunal with the following:

1. Written submissions dated 5 April 2023;

2. Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (ADR Act) including:

1. Applicant’s Firearms Licensing History;

2. Applicant’s Criminal History;

3. Applicant’s Traffic Record report;

4. COPS entries from 1999 to 2020

5. The Respondent submits that the Decision was the correct and preferable decision because:

1. pursuant to s 11(3)(a) of the Act, the Commissioner is not, and the Tribunal should also not be, satisfied that the Applicant is a fit and proper person nor can be trusted to have possession of firearms without danger to public safety or to the peace; and

2. pursuant to s 11(7) of the Act, the Commissioner is of the opinion, and the Tribunal should form the same opinion, that issuing a firearms licence to the Applicant would be contrary to the public interest.

6. For the reasons that follow, I have decided to set aside the Respondent’s decision and grant the Applicant’s licence.

Legal Principles

7. The Act establishes a legislative framework to regulate the possession, use, acquisition and supply of firearms. Section 75(1)(a) of the Act confers jurisdiction on the Tribunal to hear and determine the Application. Section 63 of the ADR Act requires the Tribunal to make the correct and preferable decision on the basis of the evidence available at the time, together with any additional or later material: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.

8. Section 3 of the Act emphasises that firearm possession and use is a privilege conditional on the overriding need to ensure public safety:

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

…

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

…

(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,

…

9. The power to grant an application for a firearms licence under s 11 of the Act is “tightly constrained” and in particular, significant emphasis is placed upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant: Kocic v Commissioner of Police, NSW Police Force (2014) 88 NSWLR 159 at [1]. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences: Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 at [117].

10. Consistent with the principles and objects referred to above, s 11 of the Act relevantly provides:

(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:

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;

…

(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.

11. The issue of a licence is itself a discretionary act, as the Commissioner “may” issue one. The later provisions in s 11 provide, without exception, prohibitions or limitations on the issue of a licence, reflecting the principles and objects in s 3 of the Firearms Act. Importantly, if a person cannot satisfy s 11(3)(a), the Commissioner “must" not issue the licence.

Public Interest

12. The expression “public interest” is not defined in the Act, but has been discussed in a number of Tribunal decisions. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] the Appeal Panel said that:

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

13. The public interest encompasses broader considerations beyond public safety. It is an inherently broad concept and is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657, it was stated at 681:

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

14. In Director of Public Prosecutions v Smith (1991) 1 VR 63 (Smith) the Court observed:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

15. In determining whether the issue of a licence is contrary to the public interest, the Tribunal is entitled to take into account criminal conduct, whether or not that conduct has resulted in an individual being charged or convicted of criminal offences, or whether the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, NSW Police Force [2017] NSWCA 31 at [62] to [64]. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].

16. In Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43, the ADT Appeal Panel said that the relevant factors to be considered by the Respondent in determining whether to exercise his discretion include matters of general public policy, which were in turn said to be informed by the principles and objectives of the Act.

17. Responsibilities extended to licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police [2005] NSWADT 75 at [25]. The public interest requires that all licensees be aware of and comply with the legislative requirements: Vella v Commissioner of Police [2003] NSWADT 91 at [41].

18. The licensing regime is also concerned with “making decisions that are consistent with a need to reduce any risks to a minimum”: Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 at [36].

19. In Saxby v Commissioner of Police [2021] NSWCATAD 275 at [14] the Tribunal described the public interest in this context as informed by the underlying principles and objects of the Firearms Act and the strict controls under the Firearms Act for licensing.

Fit and proper person

20. The High Court dealt with the expression "fit and proper person" in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In that matter the Applicant was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a “fit and proper person". Toohey and Gaudron JJ stated (at 380) 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, 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. “

21. In the same case, Mason CJ stated at [63] that:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

22. In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at paragraph [9] the High Court defined the concept of fitness and propriety as having three components - "honesty, knowledge and ability."

23. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term “fit and proper ":

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of 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 the sort of work which the licence entails."

24. In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, Judicial Member Molony said at [45]:

Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.

25. The Applicant’s fitness and propriety must be determined in the light of the role he is to undertake. The Tribunal must consider the evidence before it, taking into account and weighing up matters both contrary to and in favour of the Applicant.

26. In Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Senior Member Higgins dealt with an application in relation to firearms licensing under the Act. At paragraph [22] she stated that the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety.

“22 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace.”

Evidence

Traffic history

27. The Applicant’s traffic history includes infringement notices in 1985, 1991, 2004, 2014 and 2021 for speeding, plus an infringement notice in 1990 for not wearing a seatbelt and in 2003 for not keeping left.

Criminal history

28. The Respondent submitted that most of the Applicant’s criminal history relates to threatening behaviour. The Respondent relied on the following incidents:

1. Conviction for assault occasioning actual bodily harm on 7 January 2000;

2. AVO obtained by police in relation to the Applicant’s ex-wife on 6 January 2000 (1^st AVO);

3. AVO obtained by police in relation to the Applicant’s ex-wife on 6 September 2001 (2^nd AVO);

4. Report to Police by Applicant’s ex-wife of a threatening phone call from the Applicant on 15 September 2003;

5. Interim AVO obtained by police in relation to the Applicant’s neighbour on 11 March 2005 (3^rd AVO);

6. Report to Police for threatening a hotel patron after an argument about water allocation on 21 December 2007;

7. Report to Police for threatening a former colleague on 1 December 2018;

8. Report to Police for threatening behaviour towards two Murrumbidgee Irrigation employees on 15 October 2020.

Conviction for assault occasioning actual bodily harm

29. The Respondent’s evidence was that on 18 September 1999, the Applicant was charged with assault occasioning actual bodily harm. The incident resulting in this charge occurred on 29 August 1999, at the Wade Hotel, Leeton. The Applicant was abusive towards other patrons of the Hotel and struck an individual on the right side of his face. On 7 January 2000, the Applicant was found guilty and was ordered to pay a fine of $600.

30. The Applicant’s evidence was to the effect that his version of the facts in relation to this incident was different to that which was accepted by the court that convicted him. He expressed regret for the incident and noted that there had not been any further incidents since that time, stating:

There was a lot of tension, words were exchanged between me and Mr Weir and we traded blows. We were both intoxicated at the time. I pleaded not guilty, but the court believed his story and I got convicted. I was ultimately fined and placed on a bond which I completed without breaching.

He still lives in the same town as I do. We have spoken on numerous occasions and nothing between us has occurred since that incident. It was very unfortunate, and I regret it ever happened. I have not been charged or convicted of any other offences since this incident.

AVOs and threatening behaviour towards his ex-wife

31. On 19 December 1999, the Applicant was involved in a domestic violence incident with his then wife, Ms Janene Maree Heness (Ms Heness). The couple had argued and as a result of the argument, Ms Heness told the Applicant she would be going to her mother’s home. The Applicant “objected" to his wife’s statement and “picked up a brick, making threatening gestures. He then lost his temper further and walked over the top of his company vehicle and the family vehicle". When the Applicant’s wife departed, the Applicant “followed in an attempt to stop her”. Police attempted to speak with the Applicant, “who still displayed anger and hostility towards the victim wife and police for “interfering”, the Applicant did not stay and left the police station”.

32. As a result, on 6 January 2000, police obtained an Apprehended Violence Order (First AVO) against the Applicant for the protection of Ms Heness.

33. On 13 August 2001, the Applicant was involved in a second domestic violence incident, where he verbally abused Ms Heness. The Applicant escalated his verbal abuse to such an extent that Ms Heness attempted to leave the home and drive to her parents’ home. The Applicant followed Ms Heness outside of the home and as she reversed her car, threw towels and a mirror towards the car. Ms Heness returned to the home with her parents, to collect her and the Applicant’s children. However, the Applicant proceeded verbally abusing Ms Heness. Ms Heness consequently contacted police, who arrived shortly after.

34. As a result, on 6 September 2001, police obtained another Apprehended Violence Order (Second AVO) against the Applicant for the protection of Ms Heness. On 7 September 2001 the Second AVO was varied to add that the Applicant could not approach Ms Heness whilst affected by intoxicating liquor or drugs.

31. On 15 September 2003, Ms Heness reported another matter to police involving verbal abuse by the Applicant. Ms Heness had informed the Applicant that she was having a relationship with Mr K. The Applicant went “Into a form of rage and abuse over this pending relationship”, and threatened Ms Heness by indicating harm to Mr K, called Mr K and “abused and threatened him". Ms Heness, who was with Mr K at the time, terminated the call. Ms Heness wanted the incident to be recorded but did not want police to take any further action.

32. The Applicant did not dispute the events surrounding the issue of the First AVO or the Second AVO and said:

My marriage problems are still an embarrassment to me and I am deeply ashamed of what happened as there are no excuses. I loved my family and I provided for them the best I would and they never went without. I never missed child support payments and always gave extra when asked. Unfortunately, there was always a barrier between me and my former wife which was toxic for both of us. We now very rarely communicate and when we do it is about our children. We are on good terms. I have an excellent relationship with my children who are now both adults and both have professional careers.

37. The Applicant’s ex-wife provided a character reference which stated the following:

Grant and I were married for 12 years and have been divorced for almost 20 years. We have no issues or problems in communication. This communication is mostly regarding our 2 children, but also extends to brief birthday messages, and Xmas greetings.

The AVO granted by the courts for Grant relating to myself were organised by the local Police at that time, and I was informed that I was to attend the local court to be a witness for their application regarding the AVO. I did not seek the AVO and was told I must attend court. Grant did not at any time breach the conditions set out in the AVO and never held that against me at any further time. He has expressed remorse and regret regarding his actions.

Interim AVO obtained by police in relation to the Applicant’s neighbour

38. On 21 February 2005, the Applicant was reported to police for threatening his neighbour, Mr R. The threat related to ongoing disputes between the Applicant’s then wife, Ms Heness, and Mr R about Mr R’s noisy parties and barking dog. Police attended the location and Mr R reported the verbal abuse, stating the Applicant had verbally threatened him. According to police, the Applicant “admitted the fact that he threatened the victim but only in response to the ongoing problems which exist from the victim and his parties”.

39. On 11 March 2005 police obtained an Interim Apprehended Violence Order against the Applicant for the protection of Mr R, which expired on 12 April 2005 (the 3^rd AVO).

40. The Applicant stated:

Event Ref No: E 23080360

The AVO taken out against me by [Mr R] was an action I took to protect my ex-wife and my children. Janene (my ex-wife) rang me and was very worried what was happening next door with this person who was having parties every night with his mates who were drinking and taking drugs, banging on her door and generally being a bully to her and my children. Janene spoke to his mother who told her she can't control him, so I went over to have a peaceful talk with him asking if he would stop harassing my ex-wife and children. He was the one behind the door yelling and screaming so I left it at that. I accept an Interim Apprehended Personal Violence Order was put in place, which I did not breach during its terms. This matter occurred eighteen years ago.

41. In relation to this incident, the Applicant’s ex-wife’s character reference stated:

The AVO relating to [Mr R] was instigated by [Mr R]. [Mr R] was causing many issues for myself and Grant and my 2 children over an extended period of time. [Mr R] lived in his Mother’s unit next door to my home, however, his Mother was so afraid of [Mr R] that she did not live there herself. It is my opinion that the AVO instigated by [Mr R] against Grant should have never been heard before the court as [Mr R] merely wanted to cause as much trouble as he could for anyone at that time. [Mr R] ended up in goal for his future poor behaviour, and that came as no surprise to anyone that had to deal with his attitude and unsocial and menacing behaviour to those around him. Grant was merely trying to protect his 2 children who were very young at the time, and myself from the unrelenting torment from [Mr R] towards us.

Report to Police for threatening a hotel patron

42. On 21 December 2007, the Applicant was reported to police for threatening a hotel patron at Wade Hotel, Leeton, after an argument about water allocation. The hotel patron attended Leeton Police Station to report that the Applicant had threatened to smash a glass in his face, but did not want police to take any further action.

43. In his Statement the Applicant stated:

Event Ref No: E 32699569

I have no recollection of this matter ever taking place, if I did threaten [the hotel patron] to do as he said regarding a work matter, I would have been fired on the spot by my former employer Murrumbidgee Irrigation.

44. In cross examination the Applicant recalled the incident but denied threatening to smash a glass in the hotel patron’s face. He said he “had words” with him.

Report to Police for threatening a former colleague

45. On 1 December 2018, the Applicant was reported to police for threatening a former colleague at La Fresco Cafe Hotel, Leeton.

46. The Applicant’s threatening conduct related to the termination of the Applicant’s employment. The former colleague attended Leeton Police Station to report that the Applicant had threatened him by approaching him during dinner with his family and yelling that he had “ruined his family”, and then following him to his car while yelling further abuse.

47. The Applicant stated:

Event Ref No: E 72642153

This event did take place as it is recorded. I was deeply upset with this person [former colleague] who I thought was my friend and work colleague. His allegations (of bullying in the workplace) had caused me and my immediate family great distress and when I saw him, I wanted to let him know my disappointment that he never came to me and discussed his problems he had with me. I had no idea this person contacted the police about the incident. I was never contacted by the Police about this incident.

I was the AWU representative for my work group who at the time where going through a new enterprise agreement with Murrumbidgee Irrigation. Management representatives and work group representatives were having problems reaching a conclusion and I know as I was very vocal of getting a good deal for my members. I was targeted by management and this workplace bullying was a setup by them to oust me from Murrumbidgee Irrigation.

Report to Police for threatening behaviour towards two Murrumbidgee Irrigation employees

48. On 15 October 2020 the Applicant was reported to police for threatening two Murrumbidgee Irrigation employees while driving on Lilly Pilly Road and Merungle Hill Road. The two employees attended Leeton Police Station to report that the Applicant had wound down the window of his car, spat towards the car which they were travelling in and “flipped them the bird”. They told police that the Applicant “was terminated from Murrumbidgee Irrigation approximately 18 months ago. Since then, he has been antagonistic against anybody he sees who is affiliated with the business”. They asked police to record the incident and speak to the Applicant to prevent the matter from escalating.

49. In his statement the Applicant stated:

Event Ref No: E 148549602

I have no recollection of this incident taking place. In this report it says “this behaviour by the PN is part of an ongoing grudge between the PN and Murrumbidgee Irrigation. The PN was terminated from Murrumbidgee Irrigation approximately 18 months ago. Since then, he has been antagonistic against anybody he sees who is affiliated with the business. ” 

This is completely inaccurate as some of my best friends still work there. This is a character assassination on me from unknown individuals.

50. In cross examination the Applicant denied spitting at the employees, but admitted to sticking his finger up at them and that it was an offensive gesture.

The Applicant’s evidence

51. In his Statement the Applicant said:

I am just like everyone else and I feel shame and embarrassment for what I have done in my younger years, and I always will, no excuses. I have matured over the years. I have never been unemployed and always did the best I could with what I had for my family. I now have a successful business employing eight local people and I am a good local citizen.

My business is a takeaway food shop - fish and chips, hamburgers, schnitzels, rolls, fresh made sandwiches, slices, cakes, bread, milk, papers etc. I am open six days a week, 6am till 4pm Monday to Thursday, Fridays 5am till 7.30pm, Saturdays 6am - 2pm. Sunday is cleaning day. On Tuesdays, I provide the shop to up to 10 ladies that come in at 10-2pm for the group sewing day. I provide them a discount lunch and coffee. I also run a smoko van which supplies the local industrial area. I have nine people on my payroll and I have been in operation for four years. The shop also sponsors sporting groups in town as well as charity to those who can't afford a decent meal.

I was employed before that at Murrumbidgee Irrigation for thirty years and before that for three years at A.J. Bush and Son’s as a maintenance engineer. My apprenticeship was at the local rice mills workshop as a 1st class welder/fitter. I have been working since I was about thirteen and have never collected unemployment benefits.

…

The reasons that I would like a gun licence is that I am the owner of rural land and I run a small herd of cattle and sheep from time to time. Animal welfare is a big priority to me. I would also like to join my friends who go hunting for vermin control, and I would like to take up target shooting as a sport. I was going to join the target club in town, but I kept getting my license knocked back, so I haven't as yet. Also, it's a big advantage if you get a job on a farm to have a gun Licence.

52. Under cross examination the Applicant agreed that he had a history of arguing and intimidating people, made mistakes in the heat of the moment, was hot headed and struggled to maintain control when he was angry or drunk. He agreed that the seven incidents demonstrated a lengthy record and that he had a catalogue of driving offences. He gave some context in re-examination for his conflict with Murrumbidgee Irrigation of being a union representative for over 25 years and being accused of bullying after he resisted a 20% pay increase for management in the context of an increase of 0.9% for staff. He agreed that his actions were borne out of frustration.

Character references

53. The Applicant provided the Tribunal with 5 character references. None of the referees were required for cross examination. Each of the referees addressed their reference to this Tribunal and specifically stated that they had reviewed the s 58 documents and were providing the reference in relation to the refusal of the Applicant’s firearms licence (or “shooter’s licence” or “gun licence”). Each of the referees had known the Applicant for more than 30 years. With the exception of his ex-wife, each of the referees lived locally to the Applicant in or near Leeton and had regular interactions with him.

54. Janene Maree Young, formerly Ms Heness, is the applicant’s ex-wife and the mother of his 2 adult children. She was the protected person subject of the Applicant’s first and second AVO and was involved in the altercation which became the subject of the third AVO. She provided contextual evidence regarding the AVOs granted against the Applicant. She stated that the AVO involving her had been obtained by the local police and she had not requested it. She stated that the Applicant complied with the AVO, never held it against her, and expressed remorse and regret regarding his actions. She said the other AVO was instigated by a neighbour vexatiously and that the Applicant had only sought to protect her and their children at the time from the neighbour’s “unrelenting torment… towards us”. In relation to the Applicant’s suitability to hold a firearms licence, she stated:

I have no hesitation in supporting Grant’s application for a gun licence, which as he has stated, is for use on his rural property. I have no concerns regarding him being granted such a licence and am aware that he has been refused that and is appealing. I am offering my support for his application.

Grant is a good and loving father to our 2 children, a caring, supportive son to his mother Judy Heness, and to his sister Michelle (and is also very supportive of Michelle’s daughter). Grant has proven himself to be a good provider for his family in the town that he has lived in his entire life, and is respected by the community and customers within his take-away business in town.

55. Scott Grigg of Grigg Agricultural Services has known the Applicant since they were both teenagers, personally and professionally. Mr Grigg was a signatory to the Applicant’s firearms application. In relation to the s 58 material, Mr Grigg stated:

I have been in this town for most of my life and have been aware of most of it. Not to mention conversations I have had with Grant about this. We all learn by our mistakes and in my opinion, I believe Grant has taken away from these circumstances valuable lessons. Making him a better person.

In the business that he has opened I see this. He sponsors the Leeton Rugby League, the Mens Shed, Can Assist, Lions Club, he is president of the Greenies Football club and is generous to those down on their luck and to his staff, one of which is my daughter in law…

Grant has always been straight up with me in any dealings that we have had, as a water bailiff for Murrumbidgee Irrigation, as business owners and as a friend.

…

I find Grant to be honest, passionate, and kind, always willing to help the next guy in line. I know he has made mistakes and more importantly so does he. He is a stable hard working business owner trying to enrich his community, the best he can.

56. Matthew Holt, Councillor elect at Leeton Shire Council stated:

I have known Grant Heiress for more than 40 years, as a good family friend, sporting team member and as a business operator.

Grant has always been a hard working member of the Leeton community. He is an honest and fair man who considers people less fortunate than himself, evidenced in his generosity displayed within his Business when dealing with customers who are struggling financially.

Grant is a man who upholds the values of family and has always been a good provider for his children. He also shows this quality to his mother, sister and his niece.

Grant has the courage of his convictions and speaks out when he witness's injustice's in everyday life.

As an older man Grant shows respect to the Law and its expectations on the individual.

I have perused the Section 58 Bundle and acknowledge its contents. I believe in redemption and have witnessed this in Grant in recent years, evidenced more so in the way Grant conducts his business dealing with the public. Grants welcoming demeanour and care for less fortunate people has created a popular business that is frequented by the many on a daily basis.

Grant understands that to be a contributing member of the community he must respect the laws and rules that society imposes.

All the requirements to own and use a firearm are foremost in Grants mind and will be exercised whenever he engages in any shooting activity.

I am aware of Grants appeal before the Tribunal for a Hunting & Sporting Firearm's Licence and would urge the Tribunal to reconsider its original decision and grant him appro

57. Murray Stivens provided a reference dated 14 March 2023. He stated:

I have known Grant Heiress since he worked for Murrumbidgee Irrigation for 30 years. Grant then opened his shop on Brobenah Road, The Leeton Tourist Supermarket over four years ago and I’ve had many cups of coffee talking to Grant over the years. I have read the section 58 bundle and I adjudge its contents. I am aware of his past problems when he was a younger, and he has changed his attitude since then.

I have owned a farm at Brobenah for over 30 years, and then a small irrigation farm on the edge of Leeton for 20 years. I was in the bushfire brigade, and help positions as Secretary/Treasurer, Wee Captain and Captain for about 20 years. I have been to many fires out of area in New South Wales and Victoria as crew leader.

I have found Grant to be a good business man and willing to help anybody in Leeton. l feel Grant has learnt the errors of his ways when he was young, and he's an upstanding member of the community.

I was hoping you can justify him holding a gun license for his recreational activities. I know it's a big responsibility owning guns these days and I know that Grant is up to the challenge.

Hoping this letter makes your job a bit easier to grant him a shooters license.

58. Bill Arnold, Managing Director of Hotondo Homes, provided a reference dated 18 March 2023. He stated:

l have known Grant William Heness for more than 40 years and have been associated with him and his family.

I have played Rugby league with Grant and also have Coached him in the Under 18s, Reserve Grade and First Grade teams.

l have been involved with Grant in the sporting circle for many years and have watched him develop    into a good business owner in the later years.

We have been involved in many different committees over the years in different community events.

We all make mistakes in life and often they are in the heat of the moment as are a lot in Grant's.

I have read the Section 58 Bundle and l understand its contents.

I strongly believe Grant has left all of that type of behaviour behind him and you can now clearly see this in his action in his current business. He welcomes people into his shop and looks after the less fortunate people regularly. He has created a popular meeting place where people, of all ages and walks of life, are welcomed in a happy and friendly matter.

Grant is a caring, honest and respected member of the Community and will always go out of his way to help someone less fortunate than himself.

As I stated earlier Grant has made some mistakes but has now realised this as he has moved forward in life.

I have no hesitation in writing this reference for Grant Heness.

Consideration

59. The Tribunal accepts the Respondent’s evidence of the Applicant’s history of threatening behaviour in circumstances where the Applicant accepted in cross examination that he had a history of arguing and intimidating people, made mistakes in the heat of the moment, was hot headed and struggled to maintain control when he was angry or drunk. Significant weight is placed on each of the incidents, with the exception of the incident in 2020, upon which no weight is placed in circumstances where there was no verbal or physical interaction between the Applicant and the Murrumbidgee Irrigation employees. An offensive gesture from a distance is not, in the Tribunal’s opinion, indicative of threatening behaviour.

60. The Applicant’s incidents of threatening behaviour stretch from 1999 to 2018. The Applicant’s evidence that this threatening behaviour is a cause of shame and embarrassment to him does not demonstrate that he has, in fact, changed that behaviour. However, the evidence of his character references goes a fair way to demonstrating that he is a changed person. Each of those references comes from a referee who has known the Applicant for decades, knows the specific details of his history of threatening behaviours from the Police perspective (as expressed in the Section 58 material) and has vouched for the Applicant’s character in circumstances where they have acknowledged the issue in question is the granting of a firearms licence. The Respondent did not require any of the referees for cross examination. In the circumstances, the Tribunal gives each of the references significant weight.

59. The Applicant answered questions in cross examination with candour and freely acknowledged matters which were against his own interest, including that the individuals who had reported his behaviour to the police would have felt threatened or intimidated. The only charge and conviction in the Applicant’s history occurred over 20 years ago. The three AVOs to which he was subject, 24 to 18 years ago, are tempered by the evidence of his ex-wife, whose evidence significantly reduces the weight which the Tribunal places upon them. The Applicant and his ex-wife have been divorced for around 20 years and now have a harmonious, if distant, relationship. The Tribunal places significant weight on her evidence supporting the Applicant’s expressed remorse and changed character.

60. An AVO taken out against an individual has the effect of a 10 year mandatory exclusion period from obtaining a firearms licence, pursuant to s 11(5)(c) of the Act. The last of the Applicant’s exclusion periods concluded in 2015. In the 8 years since that time, the Respondent recorded two incidents involving the Applicant in which it was alleged he engaged in threatening behaviour. Having discounted the 2020 incident (as discussed above), the remaining incident occurred several years ago in 2018, in a particular set of circumstances, in the context of the acrimonious termination of the Applicant’s employment. The Applicant acknowledged his conduct and expressed regret for his actions, which the Tribunal accepts. There is no evidence of any further adverse interactions between the Applicant and Murrumbidgee Irrigation’s employees (former or present), or anyone else, in recent years. All the evidence suggests that there is no real possibility of the Applicant’s past threatening behaviour reoccurring in the future.

61. The Applicant’s evidence, and that of his referees, demonstrate that he has been operating a successful business in his local community for the last few years, employs a number of local residents and provides charitable support to his community. By all accounts, he is well known and well respected within his community.

62. The Applicant’s traffic history includes 8 minor infringements in the course of a 41-year driving record. The Tribunal agrees with the Applicant’s submission that this does not demonstrate a serious disregard for traffic rules. No weight is placed on the Applicant’s traffic history in the circumstances of these proceedings.

63. The Tribunal is satisfied on the evidence before it that the Applicant has demonstrated that he has a genuine reason for obtaining a firearms licence. There is no evidence before the Tribunal that the Applicant lacks honesty, knowledge, or the ability to safely hold a firearms licence.

64. Considering all of the evidence provided to the Tribunal, with significant weight placed on the unchallenged evidence of his ex-wife as to the Applicant’s character and her confidence in his suitability to hold a firearms licence, I am satisfied that the Applicant can be trusted to have possession of firearms without danger to public safety or to the peace. I find that he is a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act.

65. Whilst the Applicant does have a history of threatening behaviour, this is acknowledged and regretted by the Applicant and this Tribunal accepts the evidence of his referees to the effect that he has learned from those mistakes, is a better person now, and is a respected member of the community. Considering the passage of time, in the circumstances the Tribunal declines to exercise its discretion pursuant to s 11(7) of the Act.

66. The correct and preferable decision is to set aside the Respondent’s decision and grant the Applicant’s Category AB Firearms Licence pursuant to s 11 of the Act.

Orders

1. The respondent’s decision is set aside.

2. The Applicant is granted a category AB firearms licence.

**********

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: 02 August 2023