Reakes v Commissioner of Police

[2022] NSWCATAD 313

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Reakes v Commissioner of Police [2022] NSWCATAD 313

Hearing dates:

23 June 2021, 28 February 2022, 1 June 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior member

Decision:

The decision of the respondent dated 14 October 2020 to revoke the applicant’s firearms licence is set aside.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing – Revocation – Whether issues of a firearms licence would be contrary to the public interest – medical history – charges of stalking and menacing driving dismissed – confidential information.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

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

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60

Lee v Commissioner of Police [2020] NSWCATAD 144

Martin v Commissioner for Police (2017) NCATAD 97

Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482; 2 ALD 33

Reakes v Commissioner of Police [2021] NSWCATAD 26

SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1

Texts Cited:

None

Category:

Principal judgment

Parties:

Ben Joseph Reakes (Applicant)
Commissioner for Police

Representation:

Counsel:
S Orman-Hales (Applicant)

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

File Number(s):

2020/00321750

Publication restriction:

Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the content of the material that was filed by the Respondent on a confidential basis is not to be disclosed without further order of the Tribunal.
Those paragraphs of these reasons identified as “not for publication” are not to be released, other than to the Respondent, without further order of the Tribunal.
No record of the confidential sessions is to be disclosed, other than to the Respondent, without further order of the Tribunal.

Reasons for decision

Summary

1. Mr Reakes is a farmer who was first granted a firearms licence in 2008 for primary production and vermin control. In 2019, his licence was suspended and later revoked when he was charged with several offences, including stalking and menacing driving. When the original revocation was affirmed on internal review, Mr Reakes asked this tribunal to review the decision. 

2. The Commissioner of Police believes it would not be in the public interest for Mr Reakes to be issued with a firearms licence because of the threatening behaviour he is said to have displayed towards his former partner and in light of concerns that he does not have the capacity to manage physical activity and farming duties, and consequently, is unable to handle, possess and use a firearm.

3. The Commissioner of Police sought to provide the tribunal with confidential material that would not be disclosed to Mr Reakes or to his legal representatives. On 9 February 2021, Senior Member Walker agreed to admit the confidential material into evidence. (Reakes v Commissioner of Police [2021] NSWCATAD 26)

4. I have considered this confidential material without making it available to either Mr Reakes or his legal representatives. This is because the material is relevant to my task of determining the correct and preferable decision in a statutory context where firearm possession and use is a privilege conditional on the overriding need to ensure public safety. 

5. For the reasons set out below, I have decided to set aside the decision to revoke Mr Reakes’ firearms licence.

Background

6. Following allegations by his former partner of threatening text messages and menacing tailgating, Mr Reakes was charged with stalking, using a carriage service to menace, harass or offend, menacing driving and failing to give way to a vehicle. Shortly afterwards, Mr Reakes’ firearms licence was suspended. In November 2019, all charges were dismissed in the Local Court, with Mr Reakes receiving a dismissal pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999 for failing to give way to a vehicle.

7. Mr Reakes’ firearms licence was revoked on the basis that he had made ‘firearm-related threats’ and in light of concerns regarding his ability to safely handle and possess firearms given his mental and physical health. When the revocation was affirmed on internal review, Mr Reakes applied to this tribunal for a review of the decision. Because of the continuing COVID epidemic, the subsequent three-day hearing was held by audio-visual link.

8. At hearing, Mr Reakes gave oral evidence upon which he was extensively cross-examined. I found Mr Reakes to be a credible witness whose evidence I considered to be open and detailed.

Relevant law

9. The Firearms Act 1996 provides for the regulation, control and registration of firearms. The underlying principles of the Firearms Act are to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, to improve public safety and to facilitate a national approach to the control of firearms. (s3 of the Firearms Act 1996)

10. Section 11(4)(c) of the Firearms Act provides that ‘the Commissioner must not issue a licence to a person 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.’

11. A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that the person is a risk to public safety, and the issuing of the licence would be contrary to the public interest (Firearms Act, s 11(5A)).

12. A firearms licence may be revoked for a number of reasons, including where it is not in the public interest for the licensee to continue to hold the licence (s24(2)(d) of the Firearms Act; clause 20 of the Firearms Regulation 2017).

13. It was for this reason that Mr Reakes’ firearms licence was revoked.

14. This tribunal has the power to review the decision to revoke Mr Reakes’ firearms licence. (s75(1) (c) of the Firearms Act 1996; s 30 of the Civil and Administrative Tribunal Act 2013.)

15. In doing so, it is the role of the tribunal to make the correct and preferable decision on the material before it. (s 63 of the Administrative Decisions Review Act 1997)

16. The tribunal can take into account both the material before the original decision maker as well as any new material put before it. Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

Public interest

17. The expression “public interest” is not defined in the Firearms Act. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Firearms Act and the strict controls under the Firearms Act in relation to licensing. 

18. The public interest is a broad concept, designed to give the broader interests of the community priority over private interests. (see Comalco Aluminum (Bell Bay) Ltd v O’Connor and Others (1995) 131 ALR 657).

19. The tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23].

20. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

Public Safety

21. The question of risk is considered in Martin v Commissioner for Police (2017) NCATAD 97 at paragraphs 64- 66:

In relation to the Act’s emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which Hennessy DP said that in terms of public safety, “the Tribunal must be satisfied that there is virtually no risk”, while acknowledging that the tribunal could never be totally satisfied that a person would not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] – [79].

In Webb v CoP [2004] NSWADT 110, for example, 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”: [32].

The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.

Confidential information

22. A hearing by this tribunal is to be open to the public unless the tribunal orders otherwise. The tribunal may order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reasons (s49 of the Civil and Administrative Tribunal Act).

23. The Tribunal may:

1. prohibit or restrict the disclosure of the name of any person; and

2. make an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, or the publication of evidence given before the tribunal or received in documents lodged with the Tribunal of received in evidence;

3. make an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

24. On 9 February 2021, Senior Member Walker made the following orders in this case:

1. That any hearing in this matter, pertaining to the confidential information to be taken into account by the tribunal, be heard in the absence of Mr Reakes and his legal representatives and the public insofar as it relates to the confidential information;

2. The disclosure of the confidential material is restricted to the respondent, the respondent’s legal representatives and the tribunal;

3. The publication and recording of the evidence given at hearing that pertains to the confidential information is prohibited.

25. A tribunal is only entitled to act on material which is logically probative (Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482; 2 ALD 33)

26. Making a finding of fact on the basis of information from an anonymous source, for example, may, in some circumstances, involve a process which is tainted with illogical or irrational reasoning (SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [108]). Where it is proposed to admit evidence which a party does not have access to, scrutiny of the probative value of that evidence on the one hand, and its prejudicial effect on the other, is all the more important.

27.  Given that firearm use and possession is a privilege, and that the Firearms Act has an emphasis on public safety, it is in the public interest that any information which may be relevant to assessing risk to public safety if an application be issued with a licence is placed before the tribunal. 

Issue for determination

28. In deciding this matter, I need to determine whether I accept that it would not be in the public interest for Mr Reakes to hold a firearms licence.

29. In determining this question, I have considered all the evidence before me under the following categories:

1. Mr Reakes’ history as a holder of a firearms licence;

2. Mr Reakes’ criminal history, including his record of traffic offences;

3. Mr Reakes’ interaction with his former partner;

4. Mr Reakes’ medical history and current condition;

5. Mr Reakes’ relationship with the family of his former partner;

6. Confidential information received.

Mr Reakes’ history as the holder of a firearms licences

30. It is not in dispute that from 2008, when Mr Reakes was first issued with a firearms licence, until July 2019, when his licence was suspended, he had an unblemished record as a firearms holder. It is also undisputed that, in 2011, when police officers attended Mr Reakes’ property to conduct a firearms inspection, all firearms held by Mr Reakes were inspected and found to be correct, and the firearms storage cabinet met the required standard.

31. In his application for a firearms licence in 2019, Mr Reakes described his activities as including lambing down ewes, calving cows, cropping, hay making and horticulture. He stated that he needed a firearms licence to cull vermin, including kangaroos, foxes, pigs, rabbits and wild dogs. Contained on file is a general l(but now expired) licence issued to Mr Reakes to cull kangaroos.

32. I accept the evidence before me that Mr Reakes holds the lease for a large farming site and am satisfied that Mr Reakes requires a firearms licence for the purposes of primary production, which includes culling kangaroos, wild pigs, foxes and wild dogs.

33. I accept Mr Reakes’ evidence that since his firearms licence was revoked in 2019, he has suffered significant stock losses, particularly around lambing time, due to attacks by foxes and wild dogs. I accept that while Mr Reakes has an employee with a firearms licence, the employee’s working hours are between 7am and 4pm while pest control is most needed at night when the employee is not on the property.

Mr Reakes’ criminal history, including his record of traffic offences

34. It is not in dispute that, prior to his arrest in 2019, Mr Reakes had both an unblemished criminal and traffic record.

35. On 28 July 2019, police officers arrested Mr Reakes and seized his firearms. An interim Apprehended Violence Order issued against Mr Reakes continued until 2 November 2019 when it was withdrawn.

36. On September and November 2019, a hearing was held in the Local Court and Mr Reakes was found not guilty of the following offences: stalking, using a carriage service to menace, harass or offend and menacing driving. One count of failing to give way to a vehicle was dismissed in the Local Court pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999.

37. A final Apprehended Violence Order was sought by the police at hearing but not issued by the magistrate.

Mr Reakes’ interaction with his former partner

Text messages

38. On 28 July 2019, Mr Reakes sent his former de facto partner the following text:

This I will promise you now..The destruction you’ve caused me…[Your new partner] will not be left out of this now he will be straight on top of my destruction list as your tactics have done…Best get my vehicle off his property very quickly as well..He will [not] be a beneficial to my life’s work…Take this as a threat or whatever you wish but trust me it’s very real…Two flash prados don’t look good sitting there beside each other through my scopes.

39. On the same day, he sent further text messages including the following:

You’ve put me in the gutter the whole way and no way out..Fuck this I’m done anyway so might as well go out with a bang;

Trouble is the next step and neither you nor your family want to go through that;

Time to sort out the old fashioned way

40. According to the COPS event record made that day:

Shortly before this text was received the victim had a vehicle.. parked beside her new partner’s vehicle at his residence…and as such, knowing the accused has several firearms, she has felt apprehension and was scared for her safety.

41. According to the COPS event record, there had been no police notification of any prior incidents between Mr Reakes and his former partner.

42. In a statement dated 11 June 2021 that was prepared for these proceedings, Mr Reakes said that he regretted sending the SMS text messages:

I was experiencing an extreme low point and had no access to financial resources to support myself and pay for medical expenses..Further, the farm mortgages and other liabilities were not being paid and [my former partner] had instructed her solicitors to write to all stock agents and discourage them from allowing me to sell livestock and cattle.’

43. In his oral evidence in these proceedings, Mr Reakes agreed that in referring to ‘scopes’ in his text message he was letting his former partner know that if she kept pressing him about the money, he would disclose to the police information about weapons he suspected to be in the possession of her father.

44. In his oral evidence, Mr Reakes said that when he wrote ‘my destruction list’ in his text message, he was referring to financial destruction.

45. To contextualise the sending of the text messages, Mr Reakes gave evidence explaining that, at the time, he had only just been told that he had a cancerous tumour on his neck that needed to be quickly removed. The operation would be costly and Mr Reakes was annoyed that he no longer had access to the couple’s savings and that his former partner wouldn’t release the money he needed.

Dashcam footage

46. On 28 July 2019, Mr Reakes’ former partner reported to police that while she and Mr Reakes had both been driving in their separate cars, Mr Reakes had swerved into her lane, forcing her onto the wrong side of the road. According to his former partner, Mr Reakes then followed her so closely she feared for her safety and called the police.

47. Contained on file is a USB stick containing footage taken on 28 July 2019 from a dashcam camera on the front of her car. No dashcam camera was fixed to the back of the car.

48. The beginning of the footage shows Mr Reakes’ former partner reversing out of a carport in a Toyota Prado. A second car, also a Toyota Prado, is parked in the carport.

49. At the beginning of the footage, Mr Reakes’ former partner is on the phone, talking about Mr Reakes to a woman who, it is accepted, is her sister. Shortly afterwards, Mr Reakes’ former partner passes a ute pulled over on the side of the road and her tone changes to one of panic as she screams that Mr Reakes is behind in his car, tailgating so she is forced to drive beyond the speed limit. She then rings the police, telling the operator that she fears for her safety and is frightened she’ll crash. In answer to the operator’s questions, she confirms that Mr Reakes has never physically assaulted her, explaining that ‘he’s just angry because we’re in the process of a separation settlement.’ There was no AVO in place, she told the operator, ‘because I didn’t expect this stuff to happen.’

50. On the operator’s advice, she decided to drive straight to the police station. As she approached the town itself – and well before reaching the police station - Mr Reakes turned off into a side street.

Police Interviews

51. Once she’d arrived at the police station on 28 July 2019, Mr Reakes’ former partner gave a police interview, which was electronically recorded. In the interview, she recounted her concern that Mr Reakes had been following her:

I thought I was going to die, honestly..I thought he was going to clip my vehicle and I’d end up rolled in the car.

52. In explaining what had happened when she passed Mr Reakes’ ute, she told police:

He was already sitting up at the gap. I don’t know how that’s happened. He didn’t know I was going to [town] didn’t know I was going to be picking up mum. His car was stopping me from turning down the road to my parents.

53. On 28 July 2019, Mr Reakes agreed to take part in an electronically recorded police interview.

54. When asked to explain what he meant in his text message ‘trouble is the next step’, Mr Reakes told the police officer that he meant losing the business he and his former partner owned and where Mr Reakes’ sister and mother both worked:

Like it’s gunna cause a lot of trouble. My sister’s gunna lose her job. Her, like my mother’s gunna lose her job, they’ll lose their houses, because, oh well, they’ve got to find other jobs but, you know. That’s not a threat to, physical threat, Christ almighty.

55. When asked what he meant when he said in his text, ‘Fuck this, I’m done anyway so might as well go out with a bang’, he told the police officer:

So go out with a bang is her losing everything…So the bang, when I’ve talked to her before, even on the phone, is the bang is we’ve got to sell our farm..We’ve got to sell the businesses, we’ve got to sell our livestock, we’ve got to sell everything.

56. When asked what he meant by the expression, ‘through my scopes’ he told the police officer:

Through my eyes…Through my eyes, yeah….Oh, it’s definitely not threatening physical firearms. Christ all mighty…But please, all mighty, there’s no way on God’s earth.

57. In his police interview, Mr Reakes denied following his former partner’s car in order to threaten her, telling the police officer that he had to return to the local cattle saleyards quickly because he’d forgotten to sign the necessary declaration:

So I had to fly in and meet him and just got to the top of the gates. [The driver] was calling me on the radio at the top of the gate and I was just taken off. [She] was coming [to town] so I followed her all the way in and we turned off at Shell to go and meet him around the back and signed the –‘cause he had the [bull] on wait to get going and I was holding him up.

58. He denied having been waiting for his former partner at the top of the road, telling the police officer that:

I was sitting on the top of the gap ‘cause I was talkin’ on the UHF. I didn’t even know she was comin’ past. ..Um, she’s the one that follows me around. I don’t know how she does, but she’s got this bloody, um, thing on her phone that everywhere my phone goes she know where I am, but I don’t have that…And it wasn’t, it didn’t even, it was still talking on the radio to the old mate about bloody cattle and stuff…Like when I was travelling to town I was on the UHF talkin’ to the truck driver still coming to town. I said I’m on me way mate, and I was just still yarning to him and I felt really bad because I was holding him up…You know, uh, if I was flashin- lights and beeping horns and doin’ all sorts of crap, you know, to alarm her, it would have been different, but just coincidence that she drove past, and I didn’t even know she was going down to her mother’s.

Local Court proceedings

59. Mr Reakes appeared in the Local Court in September and November 2019 to defend charges of stalking, using a carriage service to menace, harass or offend, menacing driving and not giving way to a vehicle.

60. Both Mr Reakes and his former partner gave evidence in the proceedings.

61. When asked to explain what he meant by the text message ‘Fuck this I’m done anyway so I might as well go out with a bang’ Mr Reakes told the court:

[I]t’s just a slang term..I was trying to release some evidence towards the family, like you know, like her father’s guns, her gun.

62. When asked to explain what he meant by the text message ‘Two flash [cars] don’t look good sitting there beside each other through my scopes’ he told the court ‘it’s just another slang term for through my eyes.’

63. When asked ‘were you referring to guns when you were talking about scopes there,’ Mr Reakes replied:

Well that’s the thing, I’ve been – every now and then I would just hint to her that – don’t push me too hard because I, I don’t want to, you know, give out information.’

64. When asked to explain why he had been following his former partner in the car, Mr Reakes told the court that he had been parked on the side of the road near his property in an effort to get reception on his UHF telephone communication system when he saw her car behind him. She had her blinker on, indicating left to turn into the street where her parents live (and where Mr Reakes and his former partner used to live):

Well, she had her blinker on as if she was going to her mother's like all down our way which she goes to her mother's quite often, a few times a day sometimes and where we turn there's like a lane off the top.. beside the highway because most people are doing a hundred Ks going along there. You pull off and like cut across through the car park and where I was parked is sort of where she was going to pull in so I just - I went to pull out 'cause I seen her had the blinker on and going to turn in to go down towards her mother's and I was just going to keep heading into town and I got a shock when I looked out my right hand mirror and she was beside me, so I thought - I didn't know what was going on there, she must've changed her mind and then just yeah literally followed her to [town]. I didn't even take any notice of her, she sort of got going a bit and I got cattle and things down along the highway as we're going into [town] so I was sort of more taking off and on notice of look you know, just .. (not transcribable). into town.

65. In cross-examination, Mr Reakes explained his position on the side of the road and why he’d moved when he saw his former partner approach the turn off with her left blinker on.

A.   I just saw and started to nudge because I, I know that that's what - the lane that she uses and they go off their head when anyone's in that carpark and carry on - yes. I know the mother uses it, I use it, it's just a, a, a - well, a safer lane and a safe approach into that corner 'cause it's actually a bad corner…. And her and her family and everyone cuts through that carpark instead of using that, that lane because it's actually a sharp corner, it goes back the opposite way. So it …(not transcribable). back so when people come in there, you've got to nearly - it's a real bad - 'cause it goes into a narrow road that hasn't got any lines on it. That, that's the whole of it. As soon as you go off that road, it goes into a narrow road straight away that's got no lines on it,so they use it to safely to get down onto that road. And she had her blinker on, and I've known her all these times to be going through there so I just - she would've pulled into that lane, so I just went to, to go out. I know that she, she's beside me so I got scared, sort of, like, I didn't realise that she's coming up beside me so I, sort of, jumped and - but she was already that way when I started to move 'cause she was actually a lane over if you have a look back a bit. She's actually already a lane over. So, when I was looking in my rear vision mirror, she was actually over another lane before I even - so that's when I lost her, type of thing.

66. When questioned whether his former partner had her blinker on, Mr Reakes told the court:

[S]he had the blinker on behind me definitely. That’s why I, sort of, made the jump to pull out of the lane to let her turn into to go down that way. But then I got the shock that she was out around me.

67. During cross-examination, Mr Reakes clarified his use of the words ‘bang’ and ‘scopes’ in his text messages:

Q: I think it’s your evidence to the Court, correct me if I’m wrong, that the reference to ‘Bang’ and reference to ‘Scopes’ being your messages, is a suggestion that you’re trying to tell [her] in some sort of hidden meaning that you know something about the family’s guns?

A: She knows it is…She knows that I know what I knew.

68. When in cross-examination it was suggested to Mr Reakes that his text message ‘through your scopes’ was a direct reference to his own rifles, he told the court:

A. Why - no, why would I - there's no way. I've never - I even said that there's no way on God's earth that I would, would use a rifle towards anyone on earth. I, I live on a farm, like, I use my rifles for pest, feral animal control that - I would use the aiming for proxies that's - it's a way of life that I need - there's no God damn way that you will ever say that I would, would seize those rifles towards her.

Q. At the very least that's what you wanted [her] to think?

A: No way.

69. Prior to handing down his decision, the magistrate made the following comments in relation to the language used in Mr Reakes’ text messages:

[T0he language used, to me, is somewhat unremarkable in the case of a relationship breakdown where there are financial issues. To that extent, one
would think, and I don't say this in any way to be facetious or to treat it lightly,
but I would find that language between couples in the Family Court can be
quite unremarkable, particularly having been a practitioner in that jurisdiction
for many years. The substance of those text messages would almost fall,
although I'm not excusing it, into normal parlance, in many cases…I didn't find the text messages to be particularly remarkable. Certainly, I think in the context in which they were issued, whilst I'm not excusing the entirety of them, as I say,
didn't particularly find them out of the ordinary. 

70. In dismissing the application for an apprehended violence order against Mr Reakes, the magistrate said:

It seems to me that I whilst the standard for an AVO is on the civil standard, that is, on the balance of probability whether it is more likely than not, I have regarded Mr Reakes' behaviour, on reflection, as part and parcel of the dynamic of a couple who are engaged in a family law conflict. I did not gain the impression, at any stage during the course of hearing the evidence, that Mr Reakes intended to or has done anything to cause harm to the complainant. She may have a different perception, but I did not see his behaviour as falling into that category.

71. The magistrate proceeded to dismiss the charges of stalking, using a carriage service to menace, harass or offend and menacing driving.

72. In finding him guilty of the offence failing to give way to a vehicle, the magistrate told Mr Reakes that while he was satisfied the offence was proven, ‘having regard to your impeccable traffic record and having regard to the explanation that was adduced by you during the course of your evidence, I am satisfied that it is appropriate not to record a conviction.’

73. The Interim Apprehended Violence Order was withdrawn. In dismissing the application for a final Apprehended Violence Order, the magistrate told Mr Reakes:

For the purposes of the application for apprehended violence orders for the reasons that I have already articulated, I am not satisfied that the grounds have been met for any orders to be made. Obviously, I will expect you to conduct yourself appropriately at all times…But you are now free to leave with your criminal history intact.

Property settlement

74. In affirming the decision to revoke Mr Reakes’ firearms licence, the internal reviewer made the following finding:

The subject domestic incident appears to have arisen due to the applicant's
inability to reach an agreement with [his former partner] over the division of assets following the breakdown of the relationship, ultimately resulting in litigation. From the information before me, concerns arising from that incident and the financial separation between the applicant and Ms Weaver, cannot be allayed, as I have nothing to evidence that the property settlement and the related court matter between them has been finalised.

75. In oral evidence in these proceedings, Mr Reakes explained that his property settlement with his former partner had been finalised on 28 May 2020. A copy of the final orders is contained on file, confirming Mr Reakes’ oral evidence.

Findings

76. On the evidence before me, I accept that on 28 July 2019, Mr Reakes sent angry text messages to his former partner which caused her concern and made her apprehensive.

77. I am not satisfied that Mr Reakes sent the text messages to threaten her with physical harm. In his oral evidence for these proceedings, Mr Reakes presented as a forthright man whose language was straightforward and unembellished. On the basis of this evidence and the evidence set out above, I am satisfied that Mr Reakes sent the text messages at a time of frustration when he feared that, because the property settlement had not been finalised, he would not have access to enough money to pay for the operation to remove a tumour from his spine.

78. This accords with his former partner’s comments to police that Mr Reakes’ behaviour could be explained by the fact that he was upset about the court proceedings for their property settlement.

79. On the evidence before me, I am satisfied that in his text message, Mr Reakes was using the term ‘through my scopes’ both as a way to say ‘through my eyes’ and to suggest that he might disclose his suspicions in relation to weapons hled by her former partner’s father. Whilst the terminology is regrettable and, I accept, was upsetting to his former partner, I am not satisfied that Mr Reakes intended the message as a threat to cause her physical harm.

80. Having viewed the dashcam footage described above and having considered the police interviews of Mr Reakes and his former partner, the transcript of the Local Court proceedings and Mr Reakes’ oral evidence in these proceedings, I am not satisfied that Mr Reakes deliberately tailgated his former partner.

81. I accept that Mr Reakes’ former partner believed he was tailgating her and that the fear she articulated on the dashcam footage was genuine.

82. As she herself notes in her police interview, it is difficult to understand how Mr Reakes could have known she would be travelling to her parents’ house at that particular time, so that he could position himself at the turn-off just as she approached.

83. More likely is Mr Reakes’ explanation, namely that because his (now former) farm property is in a valley, telephone coverage can be problematic, and is better on the crest of the road leading from his property - and that of his former partner’s parents - to the highway. I accept Mr Reakes’ evidence that on 28 July 2019 he drove to the crest of the road to call the driver he’d engaged to take an injured bull to the saleyards in another town. I accept that because Mr Reakes had made a mistake in the paperwork for the sale of the bull, he was required to quickly return to the local saleyards to rectify his mistake.

84. I am satisfied that it was entirely coincidental that Mr Reakes’ former partner was approaching the turn off leading to her parents’ property (and to the property she then owned with Mr Reakes) as Mr Reakes was parked at the crest of the road, on a call to the driver he’d employed to transport the bull.

85. I accept that when Mr Reakes saw his former partner’s car, he moved forward to enable her to more easily make the turn from the highway. I am satisfied that she misunderstood Mr Reakes’ intention and, instead of turning into the road, kept driving on the highway. I accept that Mr Reakes also turned onto the highway to drive in the same direction as his former partner. I accept that Mr Reakes was travelling at speed so he could quickly sign off on the paperwork and not keep the driver waiting.

86. I accept that when the former partner saw Mr Reakes behind her, she became nervous, believing he was trying to intimidate her by tailgating her car.

87. Despite his former partner’s concerns, I am satisfied that Mr Reakes was not intentionally tailgating her car, nor did he intend to make her fearful. I am supported in this view by the fact that, as he approached the town, rather than continuing to follow her, Mr Reakes turned off the highway into a street leading to the local saleyards which, I am satisfied, was always his intended destination.

88. On the evidence before me, I am satisfied that the road incident was an unfortunate misunderstanding rather than an attempt by Mr Reakes to threaten or intimidate his former partner.

89. More than three years have passed since Mr Reakes sent the text messages detailed above. Mr Reakes and his former partner have now finalised a property settlement that, I accept, was favourable to Mr Reakes. I am also satisfied that Mr Reakes no longer lives on the property adjacent to his former partner’s parents and is instead leasing another farming site.

Mr Reakes’ medical history and current condition

90. It is not in dispute that in 2015 Mr Reakes sustained severe back and neck injuries for which he had extensive surgery and was prescribed strong medication for chronic severe disabling pain, severe disabling pain and neuropathic pain. It is also not in dispute that Mr Reakes was admitted to hospital for six days in early 2021 following a quad bike accident.

91. In affirming the original decision to revoke Mr Reakes’ firearms licence, the internal reviewer found that, in the absence of an expert medical opinion, he could not be satisfied that Mr Reakes’ physical health or mental health did not adversely impact his ability to safely use and control firearms without risk to public safety.

Physical health

92. In his report dated 3 October 2019, Dr Yanni Sergides, neurosurgeon, expressed the opinion that even with successful surgery, it was unlikely that Mr Reakes would have any capacity for future farming work or any other physical employment.

93. Despite this earlier prognosis, in a functional capacity assessment dated 21 October 2021, Ms Maggie McDougall expressed the following opinion in relation to Mr Reakes’ physical health:

Based on Mr Reakes’ reported, observed and assessed function, he has demonstrated ability to perform his current role as a farmer in a safe and durable manner…Mr Reakes demonstrated capacity to conduct a role where the physical demands of the position is marked as heavy based on the definitions provided by the Dictionary of Occupational Titles.

94. According to Ms McDougall

Mr Reakes reported that for the past two years since undergoing the foraminotomy by Neurosurgeon, Dr Sergides, he has ceased all medication and been able to resume his pre-injury role without restriction. As noted in this report, Mr Reakes has increased the size of his farming operation, employing addition staff members. Due to initial loss of strength and weakness from his incident, Mr Reakes indicated he changed his habits to reduce manual lifting tasks and utilise mechanical aids to enable him to continue to work. As such these have become ingrained and part of his usual methods now.

In returning to his role, he had demonstrated that he has adequate capacity to perform the duties required. Based on Mr Rakes' presentation at the time of assessment, no restriction or deficit in physical capacity was reported, observed or assessed, whereby there is no valid reason he would not be able to continue to perform his role in an ongoing manner.

Mr Rakes has demonstrated capacity to be able to complete his pre-injury role without restriction over the past two years as noted in this report. He has stated that his business has expanded, increasing the rate of production and staffing needs. It was acknowledged that Mr Reakes had significant ongoing pain and restriction post his injury on 8 August 2015, where-by he minimised the use of the left arm and noted to have a poor quality of life as a result. Since undergoing the foraminotomy in 2019, Mr Reakes reported a marked improvement in his symptoms whereby he has regained full use of the left arm with the only complaint of a burning sensation across the top of the left scapula that is impacted by cold (water or temperature).

No deficits were reported, observed or assessed during the evaluation. Mr Reakes had functional range of motion in his neck and consistently demonstrated good overall body strength and endurance. Mr Reakes was however assessed to have poor cardiovascular endurance. Mr Reakes did state that he felt "a little off" on the day of assessment which he attributed to receiving the second COVID-19 vaccination three days prior to the assessment.

95. Ms McDougall did not recommend any ongoing treatment for Mr Reakes.

96. In a letter dated 22 February 2022, Ms McDougall clarified that whilst she had not considered Mr Reakes’ 2021 quad bike accident in her assessment, she had subsequently read the discharge summary for Mr Reakes’ treatment following the accident. Ms McDougall confirmed that this additional information would not impact the results of her functional capacity assessment report for Mr Reakes.

97. In his report dated 1 June 2021, the general practitioner, Dr Amgad Roman, confirmed that Mr Reakes has ‘stopped all the narcotics medications which he was on for his pain that proscribed by his pain management specialist and he does not need to see or review any [p]ain specialist for his neuropathic pain at this stage.’

98. An updated report by the general practitioner, Dr Nicholas Lyons, dated 2 May 2022, states that:

I am currently Ben [Reakes]’ doctor. Ben has not been using any prescribed opioid containing medication since October 2020. Upon review Ben does not need to see his pain specialist Nathan Taylor.

99. In oral evidence in these proceedings, Mr Reakes confirmed that he was no longer taking any prescribed medications.

Mental health

100. It is not in dispute that Mr Reakes was prescribed medication in 2016 and 2017 for a major depressive disorder.

101. In a report dated 22 March 2021, the psychologist, Mr John Sheppard, found that Mr Reakes does not require any ongoing treatment for a mental health disorder, that he suffers from no mental health disorders, that his mental health is stable and that it would be appropriate for him to hold a firearms licence.

102. Mr Sheppard assessed Mr Reakes’ risk of violent offending as low, finding that he represents no current risk of harm to his former partner. According to Mr Sheppard, ‘the issue of pain has resolved naturally to a large extent and does not represent a risk factor in terms of the stability of his mental health, or him having any thoughts of self harm, or thoughts of harms to others.’

103. In a further report, provided in the form of an email on 9 June 2021, Mr Sheppard states that:

I have had a further telephone interview with Mr Reakes today which has confirmed my previously expressed opinion in my last report that he is not currently experiencing any diagnosable mental health disorder or has a previous history of such.

Further he has stated that he has no intention of harming any other person if his firearms licence is reinstated. He apologised for any previous comments made in text messages to his former partner in 2019 but explained that at the time he had experienced a severe spinal injury requiring hospitalization, his relationship with her former partner had come to an end, and he was under severe financial stress because of farm related expenses.

Mr Reakes apparently has no history of firearms related offences or convictions for offending of any type.

I confirm that I have read and considered SMS messages he sent to his former partner in 2019, the recent decision from the NSW Civil and Administrative Tribunal, and an updated report from Mr Reakes’ General Practitioner.

Mr Reakes has moved on from this difficult time in his life, experienced a favourable divorce settlement and is relatively pain free after his accident.

I also confirm that I have not been given or read a copy of notes from Mr Reakes’ consultation with psychologist Ellen Farrow but am aware that he saw her on a few occasions in relation to stress he was experiencing due to the above mentioned circumstances.

Findings

104. I accept that following his injury In 2015, the prognosis for Mr Reakes’ recovery was poor and that in 2019, he was still requiring surgery and pain medication.

105. On the evidence before me, I am satisfied that, since 2019, Mr Reakes’ recovery has been excellent and that he no longer requires any ongoing treatment for the injuries sustained in 2015 nor does he require any pain medication. I accept Ms McDougall’s findings that Mr Reakes is able to perform his role as a farmer, including any physical demands of the position.

106. I accept the opinion of the psychologist, Mr John Sheppard, that whilst Mr Reakes was prescribed medication in 2016 and 2017 for a major depressive disorder, he does not require any ongoing treatment for a mental health disorder, he suffers from no mental health disorders and his mental health is stable.

107. For these reasons, and having considered all the material before me, I am satisfied that Mr Reakes is in good physical and mental health, such that it would not adversely impact his ability to safely use and control firearms without risk to public safety.

Mr Reakes’ relationship with the family of his former partner

108. Mr Reakes and his former partner previously owned a farming property adjacent to the property owned by her parents.

109. In evidence during his 2019 Local Court proceedings, Mr Reakes explained that some of his text messages to his former partner referred to his suspicions in relation to firearms held by her father.

110. Further COPS event records contained on file describe Mr Reakes’ concerns about his former partner’s father who was subsequently charged with the possession of a number of unregistered firearms.

111. In a statement dated 11 June 2021, Mr Reakes referred to his relationship with his former partner’s family:

Contemporaneously with the family court negotiations, [her] family members made an allegation to local Police that I held an unregistered 410 shotgun. The Police attended the.. property and reviewed all my firearms and concluded I held only registered firearms in my possession and they were all stored correctly. I told Police the only other 4/10 shotgun that has been on the.. property was a 4/10 shotgun that my ex-partner.. had borrowed from her father's property to assist in terminating feral cats that were becoming a problem on the… property during our relationship. This led to Police investigating [her father’s] property which was situated across from the. farm, to determine whether a registered 4/10 shotgun was located at the property. I understand this ultimately led to [her father] being charged with several firearms offences over possession of unregistered firearms and weapons discovered at his property after the police attended his farm to investigate his firearms.

112. Having considered all the evidence before me, I am satisfied that the father of Mr Reakes’ former partner pleaded guilty to the offences and was sentenced to a term of imprisonment for which the earliest release date is April 2023.

113. There is no evidence before me implicating Mr Reakes in the possession of these unregistered guns or indicating that he has any ongoing contact with his former partner’s family. Indeed, I accept that, during the course of his relationship with his former partner, Mr Reakes had sought to distance himself from her family. I am satisfied that Mr Reakes and his former partner have sold the property adjacent to her parents and that Mr Reakes has now relocated to another property.

[NOT FOR PUBLICATION]

114. [NOT FOR PUBLICATION]’

115. [NOT FOR PUBLICATION]

116. [NOT FOR PUBLICATION]

117. [NOT FOR PUBLICATION]

118. [NOT FOR PUBLICATION]

119. [NOT FOR PUBLICATION]

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121. [NOT FOR PUBLICATION]

Do I accept that it would not be in the public interest for Mr Reakes to hold a firearms licence?

122. For the reasons set out above, I accept that:

1. Mr Reakes is a primary producer and the decision to revoke his firearms risks impacting him financially;

2. Mr Reakes and his former partner have finalised a property settlement which Mr Reakes accepts to have been favourable to him;

3. Mr Reakes has sold the property he owned adjacent to his former partner’s parents and is now leasing a property elsewhere;

4. In July 2019, Mr Reakes sent a series of text messages to his former partner. Whilst these text messages were unpleasant, I am not satisfied that Mr Reakes’ intention was to threaten her with physical harm. Instead, I am satisfied that the texts contained a hidden message that, if the couple’s financial relationship was not resolved, Mr Reakes would report his suspicions about weapons held by her father;

5. Mr Reakes has recovered sufficiently from his 2015 accident to be able to perform farm work, including managing firearms, and that he no longer needs any pain medication or further medical treatment;

6. Mr Reakes is in good mental health.

123. On this basis, I do not accept that it would not be in the public interest for Mr Reakes to hold a firearms licence.

124. Accordingly, the decision by the Commissioner for Police to revoke the applicant’s firearm licence should be set aside.

ORDER

125. The decision of the respondent dated 14 October 2020 to revoke the applicant’s firearms licence is set aside.

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

Registrar

Decision last updated: 28 September 2022