Stacey v Commissioner of Police, New South Wales Police Force

[2023] NSWCATAD 233

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Stacey v Commissioner of Police, New South Wales Police Force [2023] NSWCATAD 233

Hearing dates:

9 June 2023

Date of orders:

28 August 2023

Decision date:

28 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

1. The decision to refuse the Applicant’s Category AB Firearms Licence is set aside.

2. The Respondent is to grant the applicant a Firearms licence on the terms sought in the 28 July 2022 application.

Catchwords:

ADMINISTRATIVE LAW - Firearms –– objects of legislation – public interest – public safety – objective evidence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

Livadaru v Commissioner of Police [2008] NSWADT 160

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

Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

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

Texts Cited:

None cited

Category:

Principal judgment

Parties:

William Herbert Stacey (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/00054567

Publication restriction:

Nil

Reasons for decision

What these proceedings are about

1. These proceedings concern the Commissioner of Police’s decision to refuse the applicant’s Category AB Firearms licence application on 22 August 2022 and the upholding of that decision by way of Internal Review determined on 16 February 2023.

Introduction

2. The applicant in these proceedings is Mr William Stacey (Mr Stacey). The respondent is the Commissioner of Police NSW Police Force (the Commissioner). The Commissioner’s delegate in dealing with the application for a Category AB Firearm’s Licence formed the view that it was not in the public interest for Mr Stacey to hold a Firearms Licence.

Background

3. Following on from the decision on 22 August 2022 to refuse the application, Mr Stacey applied to the Commissioner for an Internal Review. On Internal Review the senior delegate set out Mr Stacey’s licencing history in the decision beginning with him first being licensed for firearms in 2006. That licence was suspended in 2008 following the issuing of a Provisional Apprehended Violence Order (PAVO) and registered firearms were seized or surrendered. That licence expired whilst suspended.

4. Subsequently Mr Stacey’s wife was issued a firearms licence in January 2009. In March 2009 Mr Stacey was issued a Category AB Firearms Licence and that licence was subsequently renewed on three occasions. In February 2019 Mr Stacey’s Firearms Licence was suspended following the issuing of a PAVO against him arising from a dispute with a former partner. Soon after two Apprehended Violence Orders (AVO) were put in place to protect Mr Stacey from third parties. On 19 March 2020 the PAVO against Mr Stacey was withdrawn. Five days later Mr Stacey’s Firearms Licence expired (whilst still under suspension).

5. On 28 July 2022 Mr Stacey lodged a fresh application for a Category AB Firearms Licence, being the matter currently before the Tribunal.

Jurisdiction

6. The Commissioner has refused Mr Stacey’s Firearms Licence application on the basis of s 11 (7) of the Firearms Act 1996 which provides:

11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6)

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

(2)..

(3)..

(4)..

(5)..

(6)..

(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.

7. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The third matter listed at s 75 concerns the revocation of a licence. Relevantly the section provides:

Part 8 Applications to Civil and Administrative Tribunal

75 Administrative reviews by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions—

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d)..

(e)…

(f)…

(g)…

(Emphasis added)

8. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

9. The Tribunal has jurisdiction under the Firearms Act as noted at [7] above.

10. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Administrative Review by the Tribunal

11. The parties agree that Mr Stacey filed his application for Administrative Review on 16 February 2023. As this was the same date as the date of the Internal Review decision the application to the Tribunal was clearly within the 28 day period provided to lodge an application for Administrative review. Therefore the Tribunal has jurisdiction to hear the matter having regard to s 75 of the Firearms Act 1996.

What issues do these proceedings raise for determination?

12. On my assessment the issues are:

• Is it in the public interest for the applicant to hold a licence?

• Is Mr Stacey’s interpersonal relations (in the context of being embroiled in domestic disputes) sufficient to establish that he will not be able to exercise continuous lawful control over firearms at all times?

• Is Mr Stacey’s psychological well-being sufficient to establish that he can be entrusted with firearms possession and use including that he will maintain continuous lawful control over firearms at all times?

13. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant’s written evidence

• Exhibit ‘A-1’. Application for Administrative Review dated 16 February 2023.

• Exhibit ‘A-2’: Signed Statement of William Stacey dated 21 May 2023.

• The applicant also tendered a bundle of material being selected items served by the respondent that he wished to rely upon. This material was not formally received as it was filed by the Respondent. The material included a voicemail of a telephone message from the Firearms Registry for Mr Stacey.

Respondent’s written evidence

• Exhibit ‘R-1’ Documents filed under s 58 ADR Act (212 pages) filed 21 March 2023.

• Exhibit ‘R-2’ Supplementary Bundle (73 pages) filed 6 June 2023 containing brief of evidence of AVO matters and Firearms Registry Safe Storage records for applicant.

• Exhibit ‘R-3’ USB record of body worn Police video of 14 February 2019, and record of telephone conversation between applicant and S Gordon recorded by applicant.

14. The Commissioner was legally represented and provided detailed written submissions and made oral submissions at hearing. Mr Stacey was subject to cross-examination at hearing. No other witness was called or required for cross examination at hearing.

Mr Stacey’s evidence at hearing

15. In evidence in chief Mr Stacey said that the entire Police case against him with his firearms was based on unfounded allegations with no charges being laid. He said that the reason to refuse the licence was based on false allegations and that he had held a licence without issue until 2014.

16. Mr Stacey adopted his statements Exhibit A-2 and also adopted pages 13 and 14 and 18 and 19 of the respondent’s Exhibit ‘R-2’ being two of his earlier statements and stated that they were true and correct.

17. In cross-examination Mr Stacey was asked about his firearms licence being suspended in 2008. This arose in the context of alleged suicide threats. Mr Stacey denied that he sent any video to his wife saying that he didn’t need her anymore.

18. Mr Stacey was asked about events set out at page 126 and 127 of the s 58 documents concerning contact with his wife over a mobile phone. The matter related to a period of separation and a reference to saying goodbye and that 100 rounds of ammunition had been purchased. A video message was allegedly received later that day from Mr Stacey which merely stated ‘goodbye’ – directed to their son. The documents record a COPS event which states that Mr Stacey called his estranged partner stating: ‘ll kill you and your whole family are dead’. Police were contacted.

19. Mr Stacey denied that any of the words referred to in the event were ever spoken. Whilst this incident brought about a chain of events which caused the revocation of his firearms licence at that time, Mr Stacey maintained that he only ever said that he didn’t need his partner anymore, as they had gone their own way and separated. Police subsequently located Mr Stacey and he was found in his vehicle in possession of an unsecured firearm but no action was taken as his firearms were seized due to the suspension of the firearms licence arising from the PAVO application.

20. Mr Stacey said that his mother in law at the time not his partner called Police and that the video to the son was not in any way related to self-harm but rather the separation and the fact that they would not see each other for some time. Mr Stacey disagreed with the proposition put to him that sending a good bye message in such circumstances was an unusual thing to do. He confirmed a phone call fifteen years ago but denied the content of the call as told to Police.

21. In respect of the unsecured firearm Mr Stacey said that he would have been carrying the rifle in a gun bag when he started driving. It was suggested that Mr Stacey was fairly angry at the time of these events unfolding and that was why he had his gun. Mr Stacey denied this and stated that he was a commercial shooter and Police were at that time targeting shooters and cracking down on when items were not locked down. Mr Stacey stated in his evidence that there are a lot of things that police can target shooters for which are not in the firearms law. And as a result they are not breaches of the law.

22. Mr Stacey disagreed with any proposition that at the time of the 2008 incident he was arrested and charged or taken to the Warren Hospital by Police. He said that he voluntarily went to the Police Station to sign the proposed AVO. Mr Stacey said that the whole incident where the police followed him to the caravan park concerned him dropping off his firearm to his father in law to keep in his gun safe which was at the Caravan Park.

23. Subsequent to these 2008 events Mr Stacey said that he was requested by Police to undergo a mental health assessment. At page 153 of the s 58’s is a copy of the assessment by Professor Chris Tennant. The assessment cleared Mr Stacey in respect of his mental health and wellbeing gave a clear result. As a result of the matters leading to the most recent suspension and subsequent refusals Mr Stacey said that when he was asked to get another assessment he had his GP send a referral to a Dr Headley dated 16 September 2019. However Mr Stacey said that he was unable to make an appointment and was subsequently advised that Dr Headley was not taking on patients at that time and was still not taking on patients now.

24. Mr Stacey confirmed that up until he lost his licence through suspension in February 2019 he was a commercial shooter working in an industry known as commercial harvesting. This entailed shooting kangaroos for human consumption and that he supplied meat to businesses.

25. In respect of some photos posted on social media Mr Stacey advised that one suite of photos was in relation to a tribute to a dog of his that had died of stomach cancer. Another photo that the Commissioner questioned Mr Stacey about relating to firearms was referred to as ’historical’.

26. Mr Stacey was questioned as to why in four years (since 2019) he could not obtain a medical mental health report. Mr Stacey said that he did not get a referral to another psychiatrist because no further referral was requested by the Commissioner. He said that he was only ever asked to obtain a report from Scott Headley on 15 February 2023. Why this was the case that both sides believed that Mr Stacey had to only see Mr Headley was not established during the hearing, in part because no one from the Firearms Registry gave evidence.

27. Mr Stacey was asked about a matter whereby he surrendered other firearms after the initial suspension. This involved him delivering firearms parts (which constitute firearms) and he said he was turned away by Police. In respect of the 2008 suspension Police had taken possession of a Seiko rifle and that the other licenced firearm had the barrel cut up. Mr Stacey said hat police told him that he could not surrender or produce that firearm because it was in pieces. Mr Stacey was asked whether they (Police) would collect the pieces. He said that he asked Police on two occasions to come and collect the firearms pieces. He said that as a then unlicensed person he did not think that he was meant to be driving into town and walking up to the Police Station with firearms parts.

28. In respect of the AVO Mr Stacey disputed that Police took it out on the wife’s behalf, they just took it out of their own choosing in accordance with their rules. According to Mr Stacey his wife who he since reunited with had not sought an AVO.

29. Mr Stacey denied suggestions by the Commissioner’s representative that he had an issue with Police. He agreed that he had told them that they had neglected their duty when he was asking them about an assault on him at Gin Gin and that they had not investigated that matter. He suggested to the Commissioner’s representative that he could not be stopped from attending a Police Station and as such his actions were appropriate.

30. Mr Stacey agreed that Police when he tried to raise the issues around the assault and the investigation made various comments that he could have or should have been charged. This was in relation to holding the jack handle of the car when he got out prior to being set upon.

31. Mr Stacey when asked further about the incident and why he was there said that he was already there by the river fishing when the other party turned up. He said that he was about 50 metres up the bank. He said that he had just put his fishing gear in the back of his car when the other vehicle had pulled up in front of his car. Mr Stacey said that the other persons had driven 110 kilometres to come to where he was. He said that one of the other party had a knife. Mr Stacey denied suggestions by the Commissioner’s representative that he was agitated when Police spoke to him at the Police Station about the matter.

32. Mr Stacey was asked some questions about Police body worn camera footage. Mr Stacey referred to the former Commissioner Mick Fuller’s public statement that Police would be recording interactions with the public as Police have nothing to hide. Mr Stacey confirmed that he had recorded interactions himself on his mobile phone. He denied suggestions that Police could record but he was not entitled to record to back up his position.

33. Further in cross examination Mr Stacey was taken to pages 32 and 22 of the s 58 documents which dealt with an alleged incident in the precincts of the Court in July 2019. Mr Stacey had alleged that the other party had told him that he was standing in the way and that if he did not move then he would ‘wear the door’. Police inquiries had not identified evidence to support Mr Stacey’s account of being threatened by a person called Murdoch. Likewise an incident shortly after whereby ‘Mack’ was allegedly sent by Murdoch to threaten Mr Stacey in his car on the street in front of the Courthouse was not verified by any independent evidence.

34. Questions were also asked about 2019 Police interventions in respect of the ex-girlfriend (Ms Gordon) and Mr Stacey having contact with her daughter. Mr Stacey maintained that he and the daughter were friends irrespective of the breakdown in the relationship with Ms Gordon. There were AVO’s in place concerning Mr Stacey and Ms Gordon, but not in respect of the 17 year old daughter.

35. In respect to the incident at Gin Gin where Mr Stacey was assaulted Mr Stacey said that there was no AVO in place at that time. Whilst the assault occurred with persons supporting Ms Gordon and apparently angry with Mr Stacey, he confirmed that at the time of this incident they were no longer in a relationship with Ms Gordon. The Commissioner’s representative however put to Mr Stacey that he had agreed to meet Ms Gordon at the river at Gin Gin. Mr Stacey denied this and said that he just told her he was at the bridge (the fishing spot) when she asked him where he was via her phone.

36. Mr Stacey was asked about the phone call in 2019 that ultimately resulted in his licence being suspended and eventually these proceedings. Mr Stacey agreed that there was an AVO in force to protect him from Ms Gordon and her associates. He confirmed that he called her but said that it was in response to people she knew contacting him and telling him, to call her and (in effect) make things right. Mr Stacey confirmed that the phone call went for over an hour and a half and he denied making any threats. He said he recoded the call as best he could to protect his lawful interest. He understood from Ms Gordon that she was recording the call as well. He said that he only recorded the first 11 minutes of the call as the second phone that was using to record on (belonging to another family member) went dead due to the battery.

15. Mr Stacey denied any reference to a ‘308’ in the call. He said that he did not own a 308 calibre rifle but his wife did. He gave evidence accounting for the whereabouts of his firearms at that time (14 February 2019). The Seiko Rifle was at a Gunsmith in Dubbo, the wife was the registered owner of the .308, and the other firearms were in his gun safe. Mr Stacey denied that his rifles were at the caravan park and denied any reference to having around this time fired a shot from his Ute at or towards members of the public.

16. Mr Stacey said that the ’Ute’ incident concerned a shot to the ground to alert two shooters illegally shooting on private land, to his presence. At this point of his evidence Mr Stacey identified Exhibit A-2 whereby he had given evidence of his professional, safe and lawful use of firearms, often exclusively whereby he is the only person permitted to use firearms on customers’ land.

17. Mr Stacey was asked why he did not ‘hang up’ on Ms Gordon when she called him. Mr Stacey said that ‘you cannot hang up on her because if you do she will invariably turn up on your doorstep intoxicated and usually with friends in tow’. Mr Stacey said that Ms Gordon had been known to drive 300 kilometres to do this.

18. Mr Stacey confirmed that he had the AVO in place against Gordon and Murdoch because they assaulted him. He said he called her in February 2019 as a last ditch effort to get her stop sending people to harass and contact and confront him. In respect of various text messages, Mr Stacey stood by them and said that they were responding to Ms Gordon’s messages as well as a person K Blackwell who was also one of Ms Gordon’s friends.

19. In re-examination Mr Stacey referred to the ‘goodbye’ message to his son from 15 years prior. Mr Stacey said that the mother in law was controlling the couple and as a result the marriage broke down for a time. He was expressing what was articulated by the ‘fathers rights’ lobby who said that in such circumstances fathers should say goodbye to their children. Mr Stacey was adamant that it was not an expression of suicidal thought and pointed to the subsequent mental health report.

20. Mr Stacey stated that the USB videos of the Police interactions showed a completely different position to that outlined in the documents from the Commissioner concerning Ms Gordon which had caused all of his current firearms licensing issues.

21. In respect of the shot fired from the Ute incident Mr Stacey said that the circumstances that there were two vehicles on a public road shooting across private land illegally. He said they were spot lighting.

22. The Tribunal asked some brief questions at the end of re-examination concerning Mr Stacey’s evidence about Police breaching shooters for matters relating to their vehicles. Mr Stacey clarified that the evidence related to roo shooters and the racks which the animals are hung from. Police he said could be picky and take a set against a shooter because of some issue with how their vehicle was fitted out.

23. At the end of the evidence the Tribunal noted that both parties maintained that it was relevant and necessary for the Tribunal to view the evidence on the USB drives in camera. This occurred post hearing. The parties clarified that the Commissioner’s request for a medical assessment was still outstanding. The Commissioner submitted that Mr Stacey had been put on notice about this and had received advice back from the Registry. Mr Stacey submitted that his USB audio evidence of a phone message from the Firearms Registry did no such thing.

Commissioner’s evidence

46. The Commissioner relied upon the material outlined at [13]. The Commissioner did not rely on any witness evidence and did not seek to cross examine anyone other than Mr Stacey himself.

47. The Commissioner relied on the s 58 material and the supplementary bundle as well as written and oral submissions. The Commissioner relied on the body worn audio of the interview with Ms Gordon (concerning the long phone call and alleged threats by Mr Stacey which caused the Interim AVO and suspension), the body worn video of the interview with Mr Stacey and the 11 minute audio recording of the phone call with Ms Gordon.

Applicant’s submissions

48. Mr Stacey made brief oral submissions at the end of the evidence. He said that he as a person of few interests and he leads a quite life as a 40 year old man with three children. He said that as such he does not get out very often or socialise. He is a farm hand since his suspension of licence.

49. Mr Stacey submitted that without the false allegations of Ms Gordon he would not have lost his firearms licence. He submitted that the whole case was based on the alleged threat concerning a .308 rifle. Mr Stacey submitted that no charges had arisen from any of these matters and all of the allegations were fabricated.

Commissioner’s Submissions

50. The Commissioner made oral submissions at the conclusion of the evidence and referred to their written submissions dated 15 May 2023.

51. The Commissioner submitted that the matter did not turn on a lack of criminal charges and positive Court outcomes, but it turned on Mr Stacey’s conduct.

52. Concerning the 2008 matter involving the ‘goodbye’ message the Commissioner submitted that the Tribunal should accept what is recorded in the Police material as to the meaning and context of that message. Whilst there was a medical report for that earlier matter there was no report for the 2019 matter. That issue remained in abeyance and the explanations were not satisfactory.

53. In respect of the complaints about contact by Ms Gordon and her associates the Commissioner submitted that Mr Stacey had options open to him, such as changing telephone numbers.

54. In written submissions the Commissioner referred to the often cited cases dealing with fitness and propriety as well as the public interest when considering matters in a licencing regime.

55. The Commissioner elide on the often cited cases of Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16, Martin v Commissioner of Police NSW Police Force [2017] NSWCATAD 97, Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 and Webb v Commissioner of Police, New South Wales Police [2004] NSWADT 110

56. Specific submissions were made concerning domestic violence and the public interest. Those submissions are accepted by the Tribunal and sit at the heart of the public safety matrix concerning the firearms licensing regime. Submissions were also made about the context of domestic violence and that many matters do not proceed to Court or result in Court outcomes.

57. Reference was made to cases where the Tribunal had determined that it as not in the public interest to grant a licence to a person who had and AVO subsequently withdrawn.

58. The Commissioner made submissions about Mr Stacey’s history of what they referred to as: ‘domestic disharmony’.

59. The Commissioner also referred to other cases to illustrate how the objects of the Firearms Act should be applied to matters whereby potential public safety matters were an issue.

Consideration

60. The decision under review is based upon the notion that Mr Stacey having access to firearms would be contrary to the public interest.

61. I note that Deputy President Hennessy observed in the case of Livadaru v Commissioner of Police [2008] NSWADT 160 that in reference to the public interest at [54]:

In considering the public interest, regard must be had to the underlying principle of the Act. ….

62. I note that the underlying principle of the Act concerns public safety.

63. In respect of the public interest, I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.

64. Section 3 of the Firearms Act 1996 provides:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

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

(b) to improve public safety:

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

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

65. The Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 discussed how the Tribunal should approach matters of public interest in licensing regime reviews.

28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is:

. . .

33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

66. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal observed that the ‘burden’ that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed:

1. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative.

2. Rather, as stated in Webb at [32] when considering the question of public safety:

"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".

67. The crucial issue in these proceedings concerning whether Mr Stacey should hold a firearms licence relates to the public interest. In that regard significant concern is raised around Mr Stacey’s position in a context of domestic matters, and an overlapping sequence of domestic incidents embroiling Mr Stacey into what the Commissioner described as ‘domestic disharmony’.

68. The matters in 2008 are in my view are of no great import when considering the application before me. Those matters resulted in suspensions and the requirement that Mr Stacey establish that he had sufficiently robust and stable mental health to ensure that the objects of the Legislation were met. After a period of time the Commissioner allowed Mr Stacey to again apply for and receive a firearms licence. That licence was subsequently reissued whenever he applied.

69. In addition to allowing a fresh licence to issue, the other reason that I place little or lesser weight in those past 2008 events is due to the passage of time. I note that it is over 15 years since those matters transpired. Additionally no adverse Court outcomes resulted for Mr Stacey from those matters.

70. The 2008 situation and circumstances are quite analogous to the current matter being the February 2019 matters centred around the alleged threat concerning the 308. In 2008 / 2009 Mr Stacey did not come to the Tribunal but was successful on meeting an implied condition or requirement of the Commissioner in successfully reapplying for his licence. This action appeared to be in part motived by his need or desire to return to his primary occupation as professional shooter.

71. In resect of the 2019 incidents the Tribunal has the benefit of some credible evidence that both sides commended to the Tribunal. In my view that evidence paints a different picture of the circumstances and details of what took place in early 2019 involving Mr Stacey, a picture different to that presented by the Commissioner.

72. Ms Gordon’s interview with Police establishes a number of matters about the telephone call from Mr Stacey. She states that she got the call at work but was able to take it and talk to Mr Stacey for well in excess of one and a half hours. This may be because she works in home care but it still seems somewhat unusual that Ms Gordon could go outside and take a call of that length without neglecting her responsibilities to her client. However, there is an absence of evidence of such matters and as a result the Tribunal makes no findings adverse to Ms Gordon about that issue.

73. Of greater significance however is the fact that the alleged threat concerning wearing a 308 is repeatedly stated as coming at the beginning of the telephone call. When questioned by Police she repeatedly stated that Mr Stacey said to pull her head in (as in stop contacting him through third parties) or she would wear a 308. Ms Gordon tells police that he said this very early on and as a result she was frightened and went along with the rest of the phone conversation for the ensuing lengthy time because she was scared. When returning to the threat Ms Gordon said it was made ‘right at the start’. She confirmed that once the threat was made there were no further threats and that she went along with the conversation out of fear and did not argue.

74. Ms Gordon said to Police when asked that Mr Stacey had threatened previously but had never previously threatened with any reference to guns. She described his earlier threats during the time that she had known him as being ‘OK’ and said that he was OK apart from the threat about using the guns.

75. I have carefully listened to the four audios (one with video) that were tendered and relied upon predominantly by both parties. Ms Gordon confirmed that she had recorded the lengthy telephone conversation with Mr Stacey, but it would appear had never provided it to Police. For that reason the Tribunal infers that such a recording is not before the Tribunal as reportedly made by Ms Gordon. I note that no charges arose from this matter and the PAVO against Mr Stacey was withdrawn early.

76. However, the Tribunal does have the 11 minutes of the first portion of the phone call as recoded by Mr Stacey and referred to above at [36]. In fact the recording by Mr Stacey goes for almost 12 minutes (11 mins and 53 seconds). The recording commences with Ms Gordon taking the call. The version of events given by Mr Stacey the next day to attending Police is on my assessment entirely consistent with this recording. Importantly nowhere in the first 12 minutes of the telephone conversation does Mr Stacey make any threat to anyone nor does he make any reference to firearms or the .308 firearm in any way. Consistent with his version Mr Stacey is heard to ask Ms Gordon why he is receiving calls from her friend Murdoch and why she contacted him through her tablet (as apparently confirmed by Telstra) where she claimed to be her father contacting him, and why would her father be trying to contact him anyway. The exchange which Mr Stacey drives in the conversation does canvas the Gin Gin bridge incident, the unsolicited contacts and issues around Ms Gordon’s daughter and a general concern that Mr Stacey is being watched on behalf of Ms Gordon. This is consistent with what he tells police in the body-worn video footage.

77. When the Police interview of Mr Stacey (audio and video) at the front door of his residence is viewed, there is nothing that I can glean about the telephone conversation that departs from the recording of the first 12 minutes in the facts concerning the Stacey / Gordon conversation. Everything Mr Stacey asserts occurs. Little of Ms Gordon’s assertions appear (albeit only the first 12 minutes are recorded). But her evidence is that the threats are early on or right at the start.

78. In respect of the .308 claim from the start and consistently in these proceedings that is denied by Mr Stacey. The recording would appear to verify that denial.

79. Noting that when Police interview Ms Gordon she was given a caution and also asked whether she had been drinking or taking drugs, she was reporting the .308 threat predominantly. That was the purpose of her contacting Police to report that issue. She makes a point of stating that the threat made her feel scarred. This information caused the Police to apply for a PAVO and resulted in the seizure of Mr Stacey’s firearms and his licence suspension. In effect it brought about these proceedings.

80. Ms Gordon was adamant in that interview that the threat occurred at the start of the conversation and repeated this for clarification to Police.

81. In my view it is clear from the USB keys received into evidence from both sides that the Commissioner is mistaken about the allegations concerning Mr Stacey.

82. There is evidence to rebut the assertions of a threat to do something to Ms Gordon with a .308 calibre firearm. On that basis and in the absence of any other credible evidence I accept Mr Stacey’s account of the conversation and the situation that he found himself in concerning harassment by associates of Ms Gordon. The 12 minutes of audio that exist shed a very different light on events than the circumstances or version of events maintained against Mr Stacey.

83. Whilst not the main basis for the decision for review before the Tribunal, the notion of ‘fit and proper’ is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.

84. This position is consistent with the approach that the cases outlined above have set out concerning applying the concepts in a broad manner to the available evidence and having regard to the objects and purpose of the regime. In this instance the regime is designed to protect the public as a primary consideration and for this reason under the Firearm Act access to and use of firearms is not a right but a privilege.

85. The legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act. However it is conceded that the purpose of the licencing regime is protective not punitive and all endeavours are directed towards maintaining and enhancing public safety.

86. From Mr Stacey’s perspective there are minimal matters for him to overcome. In my view with the finding that no threat ever occurred I cannot see any reason to require Mr Stacey to undergo any further mental health assessment arising from the 2019 reported incident. The other matters such as a report of a verbal disagreement with a third party related to Ms Gordon at the local IGA store are similarly of little weight especially noting that the other party did not perceive any threat.

87. Turning to the matters for determination I make the following findings on the available evidence:

• Is Mr Stacey's interpersonal relations (in the context of being embroiled in domestic disputes) sufficient to establish that he will not be able to exercise continuous lawful control over firearms at all times?

88. On my assessment noting the audio and video evidence, and Mr Stacey’s own evidence at hearing, as well as an absence of any witness evidence tested at hearing which would establish matters which could cause the Tribunal to have concerns to the contrary, I find that there is insufficient evidence to establish that Mr Stacey will not be able to exercise continuous lawful control of firearms. In the main his version of events from 2019 and onwards has been accepted by the Tribunal. In addition in the intervening period of four and a half years there is little evidence of any adverse matters arising from Mr Stacey’s interactions in the community.

88. On that basis there appears to be minimal risk of Mr Stacey being further embroiled in domestic disharmony. As such and noting his unchallenged evidence about his current lifestyle I assess that any previous risk has significantly abated. No matters involving concerns around firearms persist. For all of those reasons I believe that Mr Stacey will be able to exercise safe and responsible continuous control over firearms.

• Is Mr Stacey's psychological well-being sufficient to establish that he can be entrusted with firearms possession and use including that he will maintain continuous lawful control over firearms at all times?

90. I note that Mr Stacey has previously been medically assessed by a Professor of Psychiatry to have sufficiently robust mental health to present no risk to the ability to safely use and control firearms. The current requirement arises from the February 2019 incident. Because of the finding that I have made about that incident, I do not believe that any further medical assessment is necessary in such circumstances. The USB recording of the message left for him from the Firearms Registry does not establish the matters that the Commissioner submitted at hearing about an assessment.

• Is it in the public interest for the applicant to hold a licence?

91. In my view having discharged the evidentiary matters against him, Mr Stacey is a fit and proper person to be issued again with a licence and such a licence would be in the public interest. I note that as a professional shooter Mr Stacey has always demonstrated a high level of compliance and has not been breached in respect of his use of firearms.

92. In balancing the risk matters as referred to in Rose with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, it would be in the public interest to grant the licence application. In my view the evidence establishes that the major concerns of the Commissioner and the necessary basis for suspending the licence have fallen away on assessment of the available evidence during the administrative review.

93. The appropriate approach would be that the Tribunal sets aside the decision.

Conclusion

94. Because of the findings that I have made, it is appropriate to set aside the decision of the Commissioner.

95. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.

96. I therefore make the following orders:

Orders

1. The decision to refuse the Applicant’s Category AB Firearms Licence is set aside.

2. The Respondent is to grant the applicant a Firearms Licence on the terms sought in the 28 July 2022 application.

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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 August 2023