Vitagliano v Commissioner of Police, New South Wales Police Force

Case •

[2025] NSWCATAD 77

•

01 April 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Vitagliano v Commissioner of Police, New South Wales Police Force [2025] NSWCATAD 77
Hearing dates: 17 March 2025
Date of orders: 01 April 2025
Decision date: 01 April 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: Emeritus Prof G D Walker, Senior Member
Decision:

(1) Decision under review affirmed.

(2) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5 is prohibited.

(3) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5, is restricted to the Commissioner, the legal representatives of the Commissioner and the tribunal.

(4) Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR5 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Catchwords:

LICENSING – firearms licensing – licence refusal – fit and proper person – public interest – domestic arrangements – domestic violence – ADVO.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11;

Bilanenko v Commissioner of Police [2022] NSWCATAD 76;

Briginshaw v Briginshaw (1938) 60 CLR 316;

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

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

Crowther v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 62;

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

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65;

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

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70;

Grenfell v Commissioner of Police [2021] NSWCATAD 124;

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

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

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31;

Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145;

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 366;

LY v Commissioner of Police [2004] NSWADT 115;

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

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

Manning v Commissioner of Police [2020] NSWCATAD 111;

May v Commissioner of Police [2002] NSWCATAD 218;

Meggit v Commissioner of Police [2022] NSWCATAD 353;

Morris v Commissioner of Police [2001] NSWADT 233;

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

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

Stamatelatos v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 156;

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

Tolley v Commissioner of Police [2006] NSWADT 149;

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

Texts Cited:

None cited

Category:Principal judgment
Parties:

Mr Leonardo Vitagliano (Applicant)

Commissioner of Police, New South Wales Police Force (Respondent)
Representation:

Applicant (Self represented)

Solicitors
Maddocks Lawyers (Respondent)
File Number(s): 2024/00292566
Publication restriction:

Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5 is prohibited.

Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5, is restricted to the Commissioner, the legal representatives of the Commissioner and the tribunal.

Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR5 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

Reasons for decision

  1. The applicant Mr Leonardo Anthony Vitagliano applied to this tribunal on 9 August 2024 for review of a decision by the respondent Commissioner on 23 July 2024 to refuse his application for a category A firearms licence on public interest grounds.

  2. The applicant had been issued with a category AB firearms licence on 19 November 2015, which had been renewed on 19 November 2020 but revoked on 9 May 2023. On 18 February 2023 his firearms were taken under the Law Enforcement (Powers and Responsibilities) Act 2002 following reports that he and his wife Mrs Natasha Vitagliano had been involved in an argument in which he had refused to give her the car keys, in an attempt to prevent her from leaving the location.

  3. On 5 May 2023 he was charged with assault occasioning actual bodily harm (DV) – T2 and destroying or damaging property (DV). Those charges related to an alleged incident on 5 May 2023 in which the applicant used physical force against his wife, broke her mobile telephone and attempted to prevent her from leaving.

  4. A provisional and interim apprehended violence order (ADVO) was obtained, naming the applicant. On 31 October 2023 the ADVO was withdrawn and on 1 December 2023 the charges against the applicant were also withdrawn, following Mrs Vitagliano’s failure to attend court, notwithstanding a subpoena.

  5. The applicant attended Narellan police station on 6 May 2023 to report a domestic incident between himself and his wife that had occurred earlier, on 26 March 2023, and asked the police to apply for a “cross AVO” following an altercation in which she had allegedly physically pulled him and caused scratches on his arm.

  6. He applied on 30 May 2024 for a new category A licence, which was refused on 24 June 2024. On 4 July 2024 he requested an internal review of the refusal decision, which was itself refused on 23 July 2024. It may be noted that the internal review reasons state that he had applied for a category AB licence, but that is a clerical error as his application was for a category A licence.

  7. On 9 August 2024 he applied to this tribunal for review. Confidentiality orders were made by Montgomery SM on 6 November 2024 and the matter came on for substantive hearing on 17 March 2025. A confidential hearing at which confidential evidence was adduced was held following the open hearing.

Applicable legislation

  1. Section 11(3)(a) of the Firearms Act provides that a licence must not be issued unless “the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”.

  2. Section 11(7) is a discretionary provision which states that “Despite any other provision of this section, the Commissioner [or on review this tribunal] may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest”.

  3. Section 11(4) stipulates that without limiting the generality of s 11(3)(a), “a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: (a) the applicant’s way of living or domestic circumstances….”.

  4. The issues in the present application are thus whether the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, including whether there is reasonable cause to believe that by reason of his domestic circumstances he may not personally exercise continuous and responsible control over firearms, and whether it would be contrary to the public interest for him to hold a licence.

The evidence

  1. The respondent did not adduce oral evidence but instead relied on the documentary material, including the s 58 material (exhibits R1 and R2), and on cross-examination of the applicant.

Mr Leonardo Vitagliano (applicant)

  1. The applicant had not lodged a witness statement as required by directions on 6 November 2024, but filed two documents, exhibits A1 and A2. The former, filed on 4 February 2025, comprising 44 pages including annexures and headed “Submission in Support of Application to Reinstate Firearms Licence”, consisted mainly of material by way of submissions, but also included representations of fact. Exhibit A2, filed on 17 March 2025, was in the nature of an outline of submissions.

  2. The applicant explained that exhibit A1 had been prepared by his wife using the artificial intelligence (AI) program ChatGP and he had read it and approved of it. In the absence of a witness statement, the applicant agreed that the representations of fact contained in exhibit A1 could be treated as a witness statement.

  3. Exhibit A1 began by pointing out that the applicant had held a firearms licence since 2014, which was renewed in 2021 with full disclosure of his background. Throughout that period there had never been any issue regarding his compliance with firearms laws, and his licence was approved without question.

  4. In March 2022 (scil. 2023) his firearms were temporarily confiscated but after a full review of his compliance were returned to him in May 2022. His firearms are securely stored at his friend’s house in full compliance with the Firearms Act and Regulation. His firearms storage address has remained consistent across all his licence applications and renewals, and at no point has the Firearms Registry raised any concerns regarding his storage compliance. He has consistently adhered to all regulatory requirements.

  5. The ADVO and the criminal charges against him had been dismissed by Campbelltown Local Court because of the lack of evidence. No findings of guilt were made against him and he had never been convicted of a domestic violence offence. His wife and his son, [first name] Vitagliano had submitted letters of no contest to Camden police station, confirming the lack of evidence supporting those allegations. His firearms had never been involved in any disputes.

  6. In September 2024 he and his wife welcomed their fourth child, reinforcing the stability and growth of their family unit. His firearms are stored offsite at his friend’s residence, ensuring that they are never accessible to children, his wife or anyone else in his household.

  7. His wife Natasha Vitagliano had been incorrectly associated by the respondent with another individual named Natasha Cardozo, who had no connexion to his wife or his family. It was a clear case of mistaken identity. His wife had never been known as Natasha Cardozo nor had she ever used that name in any legal, financial or personal capacity. She has no involvement with his firearms, the storage or their use and has never held a firearms licence or had any association with firearms-related offences.

  8. He is an active member of multiple hunting and shooting clubs, where he participates in regulated shooting activities and adheres to strict safety protocols. His involvement in structured firearms training and responsible hunting demonstrate his knowledge and adherence to firearm laws. He has a long history of responsible firearm ownership, with a clear record of compliance with all legal and regulatory requirements. He has never misused a firearm, been involved in any firearm-related offences or been found in breach of firearms laws.

  9. The annexures to exhibit A1 include a copy of the birth certificate of their youngest child, born in September 2024, and undated letters from his wife and from their son headed “Statement of No Complaint” and stating that they would like the assault charge against the applicant dropped as they had been in an emotional state at the time and wished to maintain their relationship with him. Another annexure is a copy of the Local Court advice of court result noting that the application for an ADVO was withdrawn and dismissed and that the charges against the applicant for assault occasioning actual bodily harm and destroying or damaging property were dismissed and withdrawn. There is also a copy of Mrs Vitagliano’s birth certificate and of the couple’s marriage certificate.

  10. Cross-examined by Mr Winram on behalf of the respondent, the applicant said he and his wife had obtained help from ChatGP in preparing exhibit A1 but he did not recall if they had used it for the whole document. He had not read any of the cases cited in it. Their relationship had commenced in 2007 and they had been married on 20 September 2020. Like every other couple, they had problems, and for a time were separated in 2023.

  11. He did not recall the argument that had led to the police attendance on 18 February 2023. He did not recall whether she had packed her bag at about 8:00 pm or that she had left in an Uber. She had not left that evening, as their car was not roadworthy.

  12. The witness agreed that on 7 May 2023 he had reported to police the domestic dispute that took place on 26 March 2023, as was related in event report E 72403620 (exhibit R1, pp 71 – 73). It was on that occasion that she had tried to pull him away from the vehicle, causing a small bruise and some scratch marks on his right arm (shown in photographs reproduced on pp 114 – 115 of exhibit R1). The incident on 18 February 2023 was a separate occasion, there having been two disputes about the car’s lack of roadworthiness.

  13. He had reported the 26 March 2023 argument to police on 7 May 2023 because he had been arrested in connexion with the incident on 5th and 6th May. He said he did not recall having been angry at the time nor did he recall throwing anything. He did not recall smashing her mobile telephone. Asked if his wife had refused to hand him her phone, he replied that there had been a lot of false accusations about that night. They were having an argument and he was upset. Asked if he had pinned her on the ground as alleged, he repeated that there had been false accusations and denied having bitten her. He said the photograph on p 194 of a red mark on her lower back was not a bite mark, as there were no teeth marks. He had not snatched her telephone or smashed it on the ground, or demanded that she tell him her password, nor had he used a knife in an attempt to extract the SIM card from the telephone. He denied locking the doors to prevent her from leaving or pushing her, or causing her to fall to the ground and cut herself on fragments of glass from the telephone.

  14. Asked whether the photographs on pp 196 and 197 of exhibit R1 showed the cuts she had sustained, he replied that he did not recall. She had left the house at about 11:45 and they had separated from that date. The children had been upset and he had taken them to their grandparents’ place. When he returned home, he was arrested for domestic violence and served with the ADVO. His firearms licence was later revoked.

  15. The allegations about his wife’s alleged fraudulent activities described in his affidavit of 24 July 2023 (exhibit R1, pp 125 – 129) were all true. In his view he had complied with the subpoena. He agreed that he had not supplied an alternative version of the incidents referred to.

  16. The applicant tendered a letter of support signed by his wife Natasha in relation to his licence application, the contents of which are outlined below.

Applicant’s submissions

  1. The applicant tendered some written submissions (exhibit A2) filed on 17 March 2025 (the day of the hearing) which began by contending that the respondent had refused his licence on the basis of flawed reasoning, speculative concerns and legally irrelevant factors. The decision ignored procedural fairness by relying on dismissed allegations, outdated traffic history and a mistaken identity claim. The respondent’s case failed to establish any real risk to public safety, given his unblemished record of firearms ownership and compliance. It relied on incorrect and unverified information regarding his wife, despite documentary evidence disproving their claims and contradicted past approvals of his licence, as none of the issues mentioned were considered barriers in previous renewals. His firearm storage arrangements were fully compliant with the Firearms Act and the respondent had provided no evidence to the contrary. The Firearms Registry had never raised concerns regarding his storage arrangements. Public interest considerations did not support licence refusal, as there was no concrete evidence of risk to community safety, consistently with Ward v Commissioner of Police [2000] NSWADT 28.

  2. He had lawfully owned firearms for over a decade with no incidents, misuse or breaches of firearms laws and his firearms had never been involved in any criminal activity, disputes or safety concerns. After they were temporarily confiscated in March 2022, they were returned to him in May 2022, demonstrating that he was fully compliant with all legal requirements. He is a registered and active member of hunting and shooting associations, further reinforcing his lawful use of firearms.

  3. His past traffic offences were no grounds for licence refusal, most of the offences being historical, dating back to 2006, when he was younger and inexperienced. He had never been charged with dangerous driving, DUI or any offence that would indicate a reckless approach to firearms safety. He voluntarily completed a defensive driving course, further demonstrating his commitment to responsibility and safety. His past traffic offences had never impacted his ability to obtain or renew his firearms licence in the past.

  4. The Campbelltown court had dismissed all allegations against him due to lack of evidence, yet the respondent continued to use them to justify their decisions. His wife and son were subpoenaed to attend the hearing but did not appear, resulting in the case being dismissed. They also submitted letters of no contest to Camden police station, formally requesting that the charges be dropped. There have been no further incidents, and his firearms were never involved in any disputes.

  5. In oral submissions at the hearing the applicant reiterated those points, adding that it had not been claimed that he was not a fit and proper person until now. He had not updated his residential address with the Firearms Registry because it had been revoked. He had never been a reckless driver and his firearms licence had been renewed despite his traffic violations. The criminal charges against him had been dismissed because the complainant did not appear and the charges had been withdrawn.

  6. At the conclusion of the open hearing a confidential hearing was held, during which the confidential evidence outlined below was adduced.

Consideration

Approach

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

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

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

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

Fit and proper person

  1. The first ground on which the respondent contends that the revocation should be affirmed is that the applicant is not a fit and proper person to hold a firearms licence. Section 11(3)(a) mandates licence refusal unless the Commissioner is satisfied of the applicant’s fitness and propriety to possess firearms.

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

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

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

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

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

Incident 18 February 2023

  1. In the present case the respondent’s evidence on the question of fitness and propriety relates to a considerable extent to a number of domestic incidents. The first of these occurred on 18 February 2023. The applicant’s wife (who for convenience will be referred to as NV) had taken the children to the beach for the day, but when she contacted the applicant by telephone at about 7:00 pm an argument began. When she returned home at about 8:00 pm she told the applicant that she was packing her bag and taking the children to her mother’s house. The applicant did not want her to leave and held the car keys, not giving them to her.

  2. Another argument then began and NV contacted police, as she wanted the keys from him. When police arrived the parties said they had sorted the issue out and that NV was going to leave the house.

  3. Following further investigation, police took possession of the applicant’s firearms, but later concluded that no offences had occurred (event E 164680001, exhibit R1, pp 34 – 35). The applicant was able to collect his firearms from Narellan police on 5 May 2023. Although classified as domestic violence, this incident involved no use of force or threat of force. According to the applicant’s evidence, the dispute had concerned his belief that the vehicle was not roadworthy and his resulting concerns for the safety of their children.

Incident 26 March 2023

  1. In this instance the complainant was the applicant (event E 92403620, exhibit R1, pp 71 – 75). NV had been in the process of putting the three children in their car to take them to her mother’s house in Sans Souci. When she started the engine, the applicant remembered that the vehicle was 10,000 km overdue for a service and saw that there was a battery warning light showing on the dashboard. He told NV not to drive it in case it endangered the children, but she said that she had spoken to Mazda and that it would be OK.

  2. The couple had a verbal disagreement while NV was buckling the children into the vehicle, whereupon the applicant began releasing air from the rear right tyre, at which point she approached him from behind and tried to pull him away from the vehicle, which resulted in his receiving a small bruise, red marks and small scratch marks to his right arm. Shortly afterwards VN left the home with the children in an Uber. The applicant did not contact police at the time to report the incident, but took one photograph of his bicep injury. He did report the matter on 6 May 2023, following his arrest on charges arising out of the next incident, the one on 5 May 2023.

  3. On reviewing the evidence relating to the 26 March incident, police concluded that NV’s actions on that occasion appeared to be a reasonable response to the applicant’s attempt to damage her property, and his injuries were consistent with his resisting her efforts to protect her property. They considered that the offence of assault had not been made out.

  4. On 6 May 2023 the applicant had attended Narellan police to report the 26 March incident, and had asked police to “apply for a cross AVO”. They concluded that the applicant appeared to be the instigator and the aggressor, and that a power imbalance was in favour of the victim (the applicant). Consequently, there were no safety concerns for the victim and no AVO application was required (id., 75).

Incident 5 May 2023

  1. The most serious episode occurred on 5 May 2023. The police fact sheet (exhibit R1, pp 180 – 183, charge H 94074654, event E 78066465) relates that when NV arrived home at about 9 pm on 5 May, the applicant began accusing her of “being with someone else… Not telling him where she was going and lying”. Shortly afterwards he began throwing items out of NV’s wardrobe and throwing her pillows out of the bedroom.

  2. Shortly afterwards he attempted to take her mobile telephone, which she refused to hand over and ran into the “theatre room” in their house where the three children were. The applicant followed her and forcibly pinned her down where she was lying face down on the sofa, still trying to keep hold of her telephone. A little later he bit her lower back with his teeth and forcibly hung on for more than three seconds, causing her to suffer bruising, red marks and swelling. When trying to wrest her telephone from her hands, he broke two of her fingernails, causing one of them to bleed.

  3. Then he seized her telephone and ran into the kitchen, where she followed him to try to retrieve her telephone. He asked her for her password for the telephone, but she refused to give it to him. He then smashed the telephone by throwing it forcibly to the ground, causing it to shatter, with shards of glass being scattered. He picked up the telephone, walked into the kitchen and picked up a knife which he used in an attempt to open the SIM card holder.

  4. A little later he locked the windows and doors to prevent her from leaving and also took their eldest child’s mobile telephone. NV tried to reach the “Google Home” unit and tried to call 000, but the applicant reached for the Google Home Unit and took hold of it before she could use it. While he was reaching for the unit, NV took her [broken] telephone out of his hand, at which point he took hold of her and threw her to the floor. He then got on top of her while she was lying on the floor and while he was trying to take her telephone, the shards of glass from the broken telephone cut her wrists, hands and forearms in multiple areas, drawing blood. While this was happening, the three children were standing in the theatre room watching the incident and crying. A short time later the applicant took NV’s telephone and let her go.

  5. At about 11:45 pp the same day, NV left home and reported the incident to Narellan police, providing a domestic violence evidence in chief (DVEC) statement. Police photographed her injuries. At about 1:08 am police arrested the applicant and he was charged with assault occasioning actual bodily harm (DV) and destroying or damaging property (DV). Police also applied for an apprehended domestic violence order (ADVO) for the protection of NV, which was served on the applicant while in police custody. On 9 May 2023 the applicant’s firearms licence was revoked and the provisional ADVO became an interim order, with his children being added as persons in need of protection (exhibit R1, pp 2, 81 – 83).

  6. A police interview with the applicant’s 13 year-old son on 1 August 2023 corroborates the account set out above, specifically in relation to the applicant’s “tackling” NV, biting her and smashing her telephone on the ground, scattering glass (exhibit R2, pp 69 – 70, 76).

  7. In connexion with the 5 May 2023 incident, NV told police that the applicant had “anger issues” which were “getting worse [and] more frequent”. He was unpredictable and physical with her. Police held similar fears about her safety (id., 17).

  8. In her statement dated 26 July 2023 opposing an application by the applicant to vary the conditions of the interim ADVO, NV declared that she stated that she had fears for her safety from the applicant as a result of what had occurred in their relationship and said she feared “that he will further assault me or potentially kill me…. I do not want him to be able to come back into the house where I am living….” (exhibit R2, pp 52 – 53).

  9. The applicant’s evidence at the hearing in relation to the course of events was that either he did not remember what had occurred or denied the allegations. He said he did not recall throwing objects out of her bedroom, or seizing her telephone, or that she had sustained cuts from glass shards from the telephone, saying that he had been upset and there had been “a lot of false accusations about that night”. He denied pinning her down or biting her, contending that the red mark in the photograph (id., 194) was not made by a bite as there were no teeth marks.

  10. He denied seizing her telephone or asking for her password, or smashing her telephone to the ground or using a knife in an attempt to open the SIM card holder, or locking the doors, or that after she retrieved her telephone he pushed her to the floor, where she sustained cuts on glass from the telephone. He said she had left at 11:45 pm and they had separated from that date. The children had been upset and he had taken them to their grandparents’, and when he returned home he was arrested on the domestic violence charges.

  11. [Not for publication]

  12. [Not for publication]

  13. The applicant has a poor traffic record, including over 15 violations, at least three suspensions and 10 suspensions for non-payment of fines. He submits that most of the contraventions were historical, dating from 2006 and 2007, but the record shows that there is a continuing problem, with at least five infringements since 2018. He states that he has completed a defensive driving course but did not adduce any corroborative documentary evidence of that. He has had numerous traffic warnings and demerit point warning letters, as well as the three licence suspensions and 10 suspensions for non-payment of fines from 2018 to 2023.

  14. The applicant averred that the allegations of fraudulent acts by his wife in his affidavit dated 24 July 2023 (exhibit R1, pp 126 – 129) were true, including fraudulently arranging for his tax refund in the 2022 financial year to be paid to herself (id., para 17), opening bank accounts in his name without his consent (id., para 18) and falsely arranging for him to incur a driver licence suspension over contraventions committed by her (id., para 19).

  15. After the separation he had also come to learn that his home loan was in arrears and that the amount owing on it was substantially greater than he was aware. That had now led to legal action by the financial institution and he is at imminent risk of losing his property (id., paras 20 – 25). He had sought a variation of the ADVO to allow him to resume living at the property so as to ensure that NV had no access to any financial documentation in the future (id., para 28). He agreed there had been an incident on 5 May 2023 but offered no alternative version of events.

  16. In addition to the applicant’s allegations, NV had also come under adverse police notice for being charged and convicted in 2021 of stealing property as a clerk/servant to the value of more than $15,000, for which she became subject to an intensive correction order for 18 months (exhibit R2, p 2), for being reported in 2009 to have sold drugs and stolen money to finance the habit (I 36337081, exhibit R1, p 22, sub. nom. Cardozo, which the applicant stated was a case of mistaken identity) and allegedly attempting to put the applicant in breach of the provisional ADVO on 24 September 2023 (event E 78364945, id., 111).

  17. As regards the criminal charges for assault occasioning actual bodily harm and damaging property, he contended that Campbelltown court had dismissed all the allegations because of the lack of evidence and that no findings of guilt were made against him.

  18. The applicant did not adduce any character reference except for an undated letter from NV expressing full support for him in his application for a firearms licence. She believed him to be well suited to responsibly and safely managing a firearm and was confident in his commitment to adhering to all relevant regulations and safety protocols.

  19. She could personally attest to his character and his commitment to the safety and well-being of their family and community. She also did not see him as a threat to public safety, and he is a committed member of the community and will uphold all the rules and regulations and act responsibly in accordance to the firearms legislation, as he had done previously when he held his licence for a period of over 5 years.

Domestic circumstances

  1. Related to the fitness and propriety criterion in s 11(3)(a) is s 11(4)(a), which provides that without limiting the generality of the former provision, a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances.

  2. The phrase “reasonable cause to believe” in this context was considered by the tribunal in LY v Commissioner of Police, New South Wales Police [2004] NSWADT 115, [41], which concluded that the language could not be satisfied by mere assertion and required more than mere suspicion or conjecture. On the other hand, it was not necessary to establish even a prima facie case, but it was necessary to show objectively that there was reasonable cause for the relevant belief.

  3. In the present case the applicant had come under police notice on several occasions as a result of domestic violence incidents involving his wife and children, notably the incident on 5 May 2023 which had led to criminal charges and an interim ADVO. Police and NV had expressed fears regarding the applicant’s propensity for anger and the possibility of future physical harm to NV. Such tendencies caused particular concern when firearms were available.

  4. In addition, numerous incidents concerning fraudulent and criminal conduct by NV had been reported to police, including by the applicant, and have been outlined above. They include conduct directed against the applicant, Pepper Finance Corporation, the Australian Tax Office, Revenue NSW and Eden Laser Clinics, one of which resulted in 2021 in her becoming subject to an intensive correction order for 18 months (exhibit R2, p 84). The respondent submitted that those matters gave reasonable cause to believe that NV might act without consent and seek to deal with the applicant’s firearms. The applicant responded that allegedly adverse conduct by NV was not evidence of any lack of fitness or propriety on his part.

Evaluation – fitness and propriety

  1. The respondent relied on my comments in Greene v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 391, [79], citing Bilanenko v Commissioner of Police [2022] NSWCATAD 76, [63] – [68], “Fitness and propriety to hold a firearms licence are to be established as a positive conclusion based on objective evidence. Even in the absence of any criminal charges, an applicant may not be a fit and proper person to hold firearms in light of the history of repeated aggressive behaviour, lack of insight into his actions and attempts to minimize his responsibilities”.

  2. The applicant has been the subject of multiple domestic violence reports requiring police intervention, starting with 18 February 2023 when he allegedly withheld car keys from his wife. By the time police arrived, the parties had resolved the matter peaceably and no police action was required. The incident pointed to the existence of tension in the relations between the applicant and NV, but as it did not involve any actual or threatened physical violence, it does not appear to warrant substantial weight.

  3. The applicant was the complainant in relation to the incident of 26 March 2023, which began when he released the air from one of the tyres of their vehicle because NV was preparing to drive the children to her mother’s at Sans Souci. He believed the car was not roadworthy and did not want her to drive it with the children aboard, although NV said she had been told by Mazda that it was OK.

  1. She tried to pull him away from the vehicle, which resulted in his receiving a small bruise, red marks and small scratch marks to his right bicep. Police considered that he had been the instigator of the incident and that NV had only been protecting her property. No action was taken. The incident showed the applicant as taking unconsented physical action in the course of an argument, although in this instance the use of force appears to have been mutual.

  2. The most significant episode was the one on 5 May 2023, involving the applicant making accusations, throwing objects from his wife’s wardrobe, attempting to take her mobile telephone when she refused to hand it over, pinning his wife down on the sofa and biting her lower back, smashing her telephone when she refused to tell him the password, attempting to open it with a knife to access the SIM card, throwing her to the floor and getting on top of her, in the process causing her to receive cuts from the glass from the broken telephone. While this was happening, their three children were standing in the room watching and crying.

  3. NV provided police with a domestic violence evidence in chief statement (DVEC) and the applicant was arrested and charged with assault occasioning actual bodily harm (DV) and destroying or damaging property (DV). A provisional ADVO for her protection was also applied for. Police noted NV’s expressed fears for her safety because of the applicant’s anger issues, which were getting worse and more frequent. On 26 July 2023 she provided a statement in response to the applicant’s application to vary the conditions of the interim ADVO. In it she stated that she had fears for her safety from what had occurred in their relationship and also feared that he would further assault her or potentially kill her (exhibit R2, p 53, para [7]).

  4. [Not for publication]

  5. [Not for publication]

  6. [Not for publication]

  7. As to the other aspects of the episode, he simply denied all allegations. He did admit that an incident had occurred on 5 May 2023, but beyond simply declaring that many false accusations had been made about that evening, he offered no alternative version of events. That does nothing to strengthen his case. He adduced no evidence of character other than a supportive letter from his wife On the balance of probabilities I am satisfied that the respondent’s evidence relating to the 5 May 2023 events is in all material respects correct.

  8. The applicant is a married man aged 37 with four children who works as a leading hand in the construction industry. He has no criminal convictions or findings of guilt and apart from the domestic episodes described above has not come under adverse police notice. He has a poor traffic record, however, which despite some improvement in recent years, is still a continuing problem.

  9. He held a firearms licence from 2014, which was renewed in 2021 and has never committed any breaches of the legislation concerning firearms use, handling or storage. He states that he has always been a registered and active member of multiple hunting and shooting clubs and adheres to strict safety protocols. He claims that his involvement in structured firearms training and responsible hunting demonstrates his knowledge and adherence to firearms laws.

  10. He submits that Grenfell v Commissioner of Police [2021] NSWCATAD 124 found that lawful and constructive firearms use must be considered when assessing a person’s suitability for a licence. He admits that he has not read Grenfell (or indeed any of the other cases he cites) and does not refer to any passage in the case as establishing the proposition he advances. Indeed, the tribunal’s reasons are much more nuanced than he contends: “Private interests, however, are not the only matters to be taken into account. The interests of the whole community are matters for consideration” (at [92]). Again, “There is no suggestion that the Applicant has ever misused firearms or that he has ever threatened to do so. However, I accept that there is general concern in the community about firearms in homes and the potential for domestic violence incidents to involve firearms” (at [103]).

  11. The applicant submitted that the criminal charges against him had been dismissed for lack of evidence and that the respondent’s reliance on dismissed charges contradicted the principles of procedural fairness, and the tribunal must recognize that an unproven claim cannot be used as justification for revoking a fundamental right. All domestic violence allegations had been dismissed by the court for lack of evidence, and the applicant argued that Morris v Commissioner of Police [2001] NSWADT 223 established that a dismissal meant that the allegations could not be used as conclusive proof of unfitness.

  12. Again, the applicant does not refer to any passage as supporting that proposition, and in fact in Morris there was no evidence to support the charges: “The charges of resist arrest and assault occasioning actual bodily harm were dismissed. In the absence of any evidence from police officers or other witnesses to these events, I am not in a position to make findings about the circumstances of these alleged incidents”, the tribunal said. (at [17]). In this case, however, as the discussion above shows, there is in fact abundant evidence about the events concerned.

  13. This is one of a number of cases cited in the applicant’s submissions that do not support the propositions for which he advances them or which are irrelevant to the issues in this case. Thus the applicant cites Hill v Commissioner of Police [2002] NSWADT 218 as authority for the proposition that minor administrative oversights should not be the sole basis for revoking a licence, although that does not appear from the tribunal’s reasoning. In any event it is irrelevant, as administrative errors are not discussed in the tribunal’s reasons.

  14. Again, the applicant relied on May v Commissioner of Police [2001] NSWADT 82 as authority for the contention that a dismissal means that the allegations in it cannot be used as conclusive proof of unfitness, a proposition that cannot be found in the tribunal’s reasoning. The case does not discuss any dismissal of proceedings and the applicant in that case was convicted of criminal offences. The reasoning is mainly about genuine reasons, character references and considering the seriousness of past offences.

  15. The applicant also relied on the well-known case of Ward v Commissioner of Police [2000] NSWADT 28 as showing that applicants who demonstrate compliance with secure storage requirements should not be denied a licence on the basis of generalized safety concerns. The tribunal’s reasons in that case do not, however, discuss storage requirements. As was noted above, the applicant in his oral evidence admitted that he had not read any of the cases that he had cited.

  16. The charges against the applicant and the ADVO were dismissed on the basis that they were withdrawn because NV and the applicant’s son did not attend court, despite being issued with subpoenas. When domestic violence matters are withdrawn because of an alleged victim not attending court, the tribunal has held that those circumstances do not prevent incidents from being taken into account when assessing fitness and propriety. It has pointed out that victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions or because of a relationship having rectified and the parties wishing to move forward (Manning v Commissioner of Police [2020] NSWCATAD 111).

  17. Indeed, it may be noted that the undated “Statement[s] of no complaint” from NV and the applicant’s son on which the applicant relies as admissions of “no contest” (exhibit A1, pp 32 – 33) and as justifying their failure to appear on the hearing date despite the issuance of subpoenas against them only say that they were in an emotional state and were overtired, they wanted to maintain their relationship with the applicant and did not want to give evidence in court against him. They do not retract or qualify their representations of fact in relation to the actual incidents.

  18. It is well established that whether or not an applicant was formally charged with an offence or charges were proven beyond reasonable doubt, the tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proved or have been dismissed (Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64]). It is the conduct, rather than the conviction, that is of concern to the tribunal (Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]).

  19. [Not for publication].

  20. [Not for publication].

  21. As was noted above, the applicant’s traffic record is poor and despite some improvement over the years is a continuing concern. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 the tribunal considered that the applicant’s traffic history “shows a disregard for public safety and his own safety as he repeated traffic offences” at [76]). Scahill SM stated that “the Applicant’s repeated breach of traffic laws and regulations aimed at ensuring public safety indicates a disregard for a regulatory scheme aimed at ensuring public safety. The firearms regulatory scheme, and licensing scheme, focuses primarily on public safety” (at [81]).

  22. The applicant maintains that his driving offences are historical, mainly dating back to 2006 and 2007, although as has been shown above, that is not entirely true. He states that he has completed a defensive driving course, but does not produce any documentary evidence by way of corroboration. He also pointed out that none of his contraventions involved driving in a dangerous or reckless manner or driving under the influence of alcohol. On balance, it does not appear that the applicant’s traffic record, although poor, rises to the level that would in itself warrant licence refusal, although it certainly does not assist his case.

Conclusion – Fitness and propriety

  1. As regards the applicant’s domestic arrangements, on 24 July 2023, the applicant swore an affidavit in support of his application to vary the conditions of the interim ADVO and an application to vary his bail conditions. In it he made the allegations concerning his wife’s conduct noted above. NV had previously been convicted of stealing property as a clerk or servant and appeared to have attempted to manoeuvre the applicant into a breach of the provisional ADVO on 24 September 2023 (event E 78364945, exhibit R1, p 111).

  2. The respondent submits that given NV’s record of offences of dishonesty the tribunal has reasonable cause to believe that the applicant’s wife may act without consent and seek to deal with the applicant’s firearms. The tribunal has noted that there is no basis for differentiating between the conduct of an applicant and the conduct of another that may impact on public safety in the context of a firearms licence (Tolley v Commissioner of Police [2006] NSWADT 149, [31]).

  3. The applicant submits that he is an independent individual with no record of firearms misuse. His firearms were stored off the premises at a friend’s safe storage, his wife had no access to them and the Firearms Registry had never raised any concerns about his firearms storage. Indeed, in Tolley the tribunal dealt with a case where firearms were stored on premises at which an offender might be residing. In this case it is not disputed that the applicant’s firearms were stored off-site.

  4. The risk that NV might through improper means gain access to the applicant’s firearms at the applicant’s safe storage location seems a theoretical one, rather than a real and appreciable one, as those terms are used in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32] (see also below). On the evidence there is no reasonable cause to believe that the applicant’s domestic circumstances would impair his ability to maintain continuous and responsible control over firearms.

  5. The main concern in relation to fitness and propriety, however, is the succession of domestic incidents in 2023 (although not all involving violence or threatening violence, and in one instance the violence was in part mutual), especially the episode on 5 May 2023. That incident led to criminal charges for assault occasioning actual bodily harm and destruction of property, and although they were withdrawn and dismissed following the non-appearance of NV and the applicant’s son, for the reasons given above the tribunal must take them into consideration.

  6. A striking feature of this case is the applicant’s failure to acknowledge any responsibility for those events, much less express any remorse over them. The tribunal has considered lack of remorse to be a factor in whether applicants understand their obligations under the Act and that they have a commitment to following through on those obligations (Crowther v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 62).

  7. Especially unusual is the applicant’s failure to advance an alternative version of events, even though he admits that an incident took place at the time and place stated, beyond declaring that many false accusations were made in relation to that evening. In his oral evidence he simply denied serious allegations or unconvincingly pleaded a bad memory.

  8. While there have been no similar instances since 2023, and he and his wife now seem to be reconciled and living harmoniously, thereby reducing the risk of any future confrontations, the episodes are too recent and too serious. If further time elapses without such incidents a different view might be taken, but on the evidence as it stands at present it is not possible to make a positive finding that the applicant is a fit and proper person to hold a firearms licence, and I so find.

Public interest

  1. The other ground on which the respondent relies as supporting licence refusal is that it would not be in the public interest for the applicant to hold a firearms licence. The “public interest” factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.

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

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

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

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

  6. The evidence considered above on the issue of fitness and propriety is also relevant on the question of public interest. The succession of domestic incidents in the applicant’s household that has led to police intervention on several occasions raises concerns about the possibility of similar or worse incidents in the future. The 5 May 2023 episode, which led to charges of assault occasioning actual bodily harm and destruction of property involved multiple acts of actual violence, and took place less than two years ago.

  7. Though it appears that relations between the spouses have calmed, the incident is too recent to allay concerns about the possibility of tensions arising in the future. It could hardly be in the public interest for a firearms licence to be issued to a person recently involved in confrontations of that nature.

  8. It is also significant that as a result of those incidents, child at risk reports were recorded by police, as the children were present during the verbal and physical altercations between the spouses. Thus, event E 92403620, 26 March 2023, exhibit R1, p 78 records that “the children’s parents (sic) are continuously being exposed to and are present during most of the verbal and physical arguments between their parents. These arguments are becoming more frequent and progressively becoming worse. I believe this may negatively affect the children’s psychological well-being and put them in harm’s way in the future”.

  9. Also for the reasons given above in relation to fitness and propriety, the currently available open and confidential evidence leads, consistently with s 11(7), to the conclusion that issuing a firearms licence to the applicant at present would involve a real or appreciable risk to public safety, as those terms are understood in Webb, and I so find. The decision under review must be affirmed.

Orders

  1. Decision under review affirmed.

  2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (CAT Act), the publication of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5 is prohibited.

  3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR5, or matters contained in the confidential material and confidential exhibit CR5, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal.

  4. Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR5 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released to the applicant.

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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: 01 April 2025

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Australian Broadcasting Tribunal v Bond [1990] HCA 33
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Bilanenko v Commissioner of Police [2022] NSWCATAD 76